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HomeMy WebLinkAboutContract 50013 CITY SECRETARY CONTRACT NO. 5 O OpTeOpTerraES rES Contract#: R3216 ENERGY SERVICES CONTRACT BETWEEN THE CITY OF FORT WORTH AND OPTERRA ENERGY SERVICES, INC. "Customer"or"City": City of Fort Worth,Texas Customer Address: 200 Texas Street Fort Worth,TX 76102 Contract Effective Date: Phone Number: (817)392-2255 "Contract Amount"(refer to Attachment 3E): Date of Program Development Agreement between $1,298,700 Customer and OpTerra ES: April.2017 First Year's"Annual Guarantee Fee": $0 "Energy Savings Term": 15 Yrs. 0 Mo., plus the Construction Period Estimated Construction Period: 0 Yrs. 4 Mo Aggregate"Guaranteed Savings"throughout Energy Savings Term(Itemized in Attachment 3G): $1,777,367 WHEREAS, Customer owns and/or operates certain public facilities specifically described in Attachment 36 attached hereto and incorporated herein ("Facilities")and Customer wishes to reduce its Facilities'energy consumption and costs and improve the Facilities' energy quality/reliability by contracting to procure comprehensive energy management strategy expertise to achieve long term benefits and flexibility in managing the Customer's power and energy needs and to implement certain new and upgraded energy system related equipment and materials;and WHEREAS, OpTerra ES is a full-service energy services company with the technical capabilities to provide services to the Customer including, but not limited to, energy auditing, engineering, procurement, construction management, installation, construction,financing, training, monitoring and verification, and maintenance and operation (collectively,"Services");and WHEREAS, the Customer executed an Program Development Agreement with OpTerra ES to perform an integrated energy assessment and present the Customer with a detailed assessment report("Report")and recommended energy plan to implement certain Energy Conservation Measures("ECM's"). The Report identified potential energy and operational savings opportunities at the identified Customer's Facilities and identified estimated program costs to implement the recommended ECM's and presented an overall potential energy cost and consumption savings of implementing the ECM recommendations;and i�- WHEREAS,on 4i +t(M&C —12-0 Z )the City Council authorized its City Manager or his/her designee to execute this Energy Services Contract on behalf of the City. NOW,THEREFORE,the Customer and OpTerra ES hereby agree as follows: This Energy Services Contract ("Contract) is made and entered into as of the Contract Effective Date by and between OpTerra Energy Services,Inc.,("OpTerra ES"or"Vendor"),a Delaware corporation, having its principal offices at 500 12th Street, Suite 300,Oakland, CA 94607, authorized to do business in Texas under the same name, and the Customer, for the purposes of providing comprehensive energy services to Customer. "OpTerra ES" and the "Customer" may singularly be identified as"Party'and collectively as"Parties." This Contract is subject to the terms and conditions provided in The Interlocal Purchasing System(TIPS)Contract#170103 award as well as those attached to this Contract(collectively, "Contract Documents"). The City hereby incorporates by reference the documents attached, and in the event of an inconsistency among the Contract Documents,the following order of precedence shall apply: 1. TIPS Contract # 170103 Vendor Agreement with OpTerra Energy Services, Inc. dated 2/23/17 containing Solicitation and Standard Terms and Conditions; 2. General Terms and Conditions; 3. Attachments. The undersigned represents and warrants that he or she has the power and authority to exe ` MfALt"IRt d' party,and that the execution and performance of this Contract has been duly authorized. CITY SECRETARY Page 1 of 30 FT.WORTH,TX CFW and OpTerra ES ATTACHMENTS TO CONTRACT Attachment Title 1. TIPS Contract #170103 Vendor Agreement with OpTerra Energy Services, Inc. dated 2/23/17 containing Solicitation and Standard Terms and Conditions 2. General Terms and Conditions 3. Construction/Installation Terms and Conditions, including items listed in A-H, below: A Design/Build Terms and Conditions B Customer's Facilities and Existing Equipment C Scope of Work D Project Schedule E Progress Payment Schedule F Energy Management and Guarantee Services G Guaranteed Savings H Financial Proforma IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Contract by their duly authorized officers on the date first above written. Customer Name: CITY OF FORT WORTH Vendor Nam PTERRA ENERGY SERVICES,INC. Authorized Signature Aut zed Sig ature Printed Name: Vala4alAlt�ei91+�+�ler}- Printed Name: co son Title:Assistant City Manager Title:Vice President Date: / a Date: APP-ROVAL RECOMMENDED: Name: Position: APPROVED AS TO FORM AND LEGALITY MOM7 H:: de Ai i Pa+e �ywf(ws w 15(s� SR,Assistant City Attorney Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring/all performance and reporting requirements. uoo- Name J.Aot,,t,, C,0,,,k%,N Title 4J*,hALr;n5/Nar,a�Y OFFICIAL RECORD CITY SECRETARY Page 2 of 30 FT.WORTHY TX CFW and OpTerra ES APPROVED AS TO FORMEGALITY FO OPTERRA EN RGY ICES, INC.: A orney f er �0 *r ATT T: .J1 Vary J. K City Secr M&C No. L Jt G " Date: _ Z 1295 OFFICIAL RECORD CITY SECRETARY Page 3 of 30 FT.WORTM,TX CFW and OpTerra ES OpTerra Energy Services, Inc. ATTACHMENT 1 TIPS CONTRACT 170103 VENDOR AGREEMENT WITH OPTERRA ENERGY SERVICES, INC. DATED 2/23/17 CONTAINING SOLICITATION AND TERMS AND CONDITIONS Rev. Date: Page 4 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ATTACHMENT 2 GENERAL TERMS AND CONDITIONS SECTION 1, PERFORMANCE OF THE WORK Section 1.1. Performance of Work / Additional Terms and Conditions Governing Construction. All the Work to be performed hereunder, including engineering, equipment and material procurement, installation, construction, and measurement & verification provided by OpTerra ES, will be provided in accordance per the terms of this Contract, its attachments, and the terms of Attachment 3A,"Design/Build Terms and Conditions",attached hereto and incorporated herein. Section 1.2 Scope of Work. The Scope of Work to be provided hereunder, including all engineering, equipment and material procurement,and installation and construction,is more fully described in the Scope of Work attached hereto as Attachment 3C, "Scope of Work". Section 1.3 Project Schedule/ Notice to Proceed. The preliminary project schedule is presented in Attachment 3D, "Project Schedule" which is attached hereto and incorporated herein ("Project Schedule"). Within ten (10) calendar days after the Customer has executed the contract, Customer will issue to OpTerra ES a written Notice to Proceed("Notice to Proceed"or"NTP"). If the Customer fails to issue the Notice to Proceed within ten (10)calendar days after executing the contract,the Parties agree that the Notice to Proceed shall be deemed to have been issued on the tenth(10"')day after contract execution. OpTerra ES shall begin Work within thirty(30)calendar days of the Notice to Proceed. Section 1.4 Additional Work. During the Contract Term,the Parties hereto may mutually agree to add additional Work and/or Projects to the Scope of Work by a written Change Order executed by both Parties; and such work shall be performed in accordance with the terms and conditions of this Contract,as amended. SECTION 2. CUSTOMER'S ENERGY AND OPERATIONAL RECORDS AND DATA Customer represents and warrants that it has furnished to OpTerra ES(or shall furnish,or cause its energy suppliers to furnish, no later than ten (10) business days after the Contract Effective Date), all of its records and complete data requested by OpTerra ES concerning,without limitation,energy usage,energy-related maintenance,and other related costs for the Facilities listed in Attachment 3B, "Customer Facilities and Existing Equipment",and including without limitation the following data for at least the past twelve(12) months and,optimally,the most current thirty-six(36)month period: utility records;occupancy information;descriptions of any changes in the building structure or its heating,cooling, lighting or other systems or energy requirements;descriptions of all energy consuming or saving equipment used in the Facilities;applicable building drawings,specifications,existing AutoCAD files,O&M manuals,and as-builts; bills and records relating to operation and maintenance of systems and equipment within the Facilities,and a description of operation and management procedures presently utilized. Customer agrees that OpTerra ES may rely on the foregoing data as being accurate in all respects. If requested,Customer shall also provide any prior energy audits of the Facilities,and copies of Customer's financial statements and records related to energy usage and operational costs for said time period at the Facilities, and shall authorize its agents and employees to provide and freely discuss such records and to make themselves available for consultations and discussions with authorized representatives,employees,subcontractors,and agents of OpTerra ES. SECTION 3. CONTRACT TERM The term of the Contract shall commence on the Contract Effective Date and end at the end of the Energy Savings Term,unless terminated early as provided in this Contract. SECTION 4. CONTRACT PRICE AND PAYMENTS Payments by Customer to OpTerra ES under this Contract shall be in the form of monthly progress payments as discussed below and specifically described in Attachment 3E,"Progress Payment Schedule".In no event shall the total payment from City made to OpTerra ES for services provided pursuant tot his Contract exceed the total sum of$1,298,700. Section 4.1. Payments. Upon execution of this Contract, OpTerra ES shall invoice the Customer for the Program Development Agreement Fee plus a Mobilization Fee,as detailed on Attachment 3E. Each Monthly Progress Payment shall be made on or before the tenth(1 Yh)day after such Request for Payment was received by Customer. Upon Substantial Completion of all phases of the Work, the retainage amount shall be reduced to five(5%)percent of the total Contract Amount,and upon OpTerra ES issuing an invoice therefor, Customer shall pay this amount. Customer shall pay OpTerra ES the remaining five(50%)percent retainage upon achieving Final Completion of all phases of the Work. Section 4.2 Final Payment. The final Request for Payment may be made after Final Completion. Final Payment amount shall also include payment to OpTerra ES for the remaining five(5%)percent retainage amounts withheld by Customer. Section 4.3 Disputed Invoices/Late Payments. If Customer disputes any Request for Payment,or part thereof,or any supporting documentation related thereto, Customer shall make full payment to OpTerra ES when required in Section 4.1 above, less Rev. Date: Page 5 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. any portions of the Request for Payment amount in dispute, and shall provide to OpTerra ES a written explanation of the basis for the dispute and the amount of the Request for Payment being withheld related to the dispute, no later than the Due Date. If any amount disputed by Customer is finally determined to be due to OpTerra ES, either by agreement between the Parties or as a result of dispute resolution pursuant to Section 16 below, it shall be paid to OpTerra ES within ten (10) business days of such final determination, plus reasonable interest at the interest rate set forth in Attachment 3A,Article 1,No. 19("Interest"). Section 4.4 Annual Guarantee Fee. If applicable, as identified ir.Attachment 3E,the First Year's Annual Guarantee Fee shall be invoiced by OpTerra ES to the Customer in a lump sum on the M&V Commencement Date. All subsequent Annual Guarantee Fees will be billed annually on the anniversary of the M&V Commencement Date. The Customer,or their designee,shall approve each Request for Payment,without any retention amount withheld,within thirty(30)calendar days after its receipt thereof. A failure to timely approve a Request for Payment hereunder shall be a material default by Customer under this Contract. SECTION 5. WARRANTY/INDEMNIFICATION OpTerra ES warrants its workmanship provided hereunder,including its subcontractors'workmanship,shall be free of material defects for a period of one (1) year from the date of Substantial Completion as indicated on the executed Certificate of Substantial Completion, or the date of Beneficial Use as indicated on the executed Certificate of Beneficial Use ("OpTerra ES Warranty"). All warranties hereunder,including without limitation those for defects,whether latent or patent,in design,engineering,or construction,shall terminate one (1) year from the date of Substantial Completion or Beneficial Use; and thereafter, OpTerra ES will have no liability for breach of any warranty or for any latent or patent defect of any kind. Equipment and material warranties shall be provided directly by the equipment and/or material manufacturers and such warranties shall be assigned directly to the Customer. This warranty expressly excludes any remedy for damage or defect caused by improper use, improper or inadequate maintenance, operations of the installed equipment by users other than OpTerra ES or its subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized OpTerra ES subcontractor,improper operation,or normal wear and tear under normal usage. If a warranty issue arises on any equipment or material the Customer shall contact the manufacturer directly to resolve such warranty issues and Customer acknowledges that the manufacturer shall have sole responsibility for such issues. LIABILITY-VENDOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS,PROPERTY DAMAGE AND/OR PERSONAL INJURY,INCLUDING DEATH,TO ANY AND ALL PERSONS,OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES, PROVIDED THAT NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,INDIRECT INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES HEREUNDER. INDEMNIFICATION -VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY (ALSO REFERRED TO AS BUYER),ITS OFFICERS,AGENTS,SERVANTS AND EMPLOYEES,FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS,AND ANY RESULTING LOST PROFITS) PERSONAL INJURY INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF VENDOR, ITS OFFICERS,AGENTS,SUBCONTRACTOR(S)S,SERVANTS OR EMPLOYEES. This Section shall survive the termination or expiration of the Contract. SECTION 6. GOVERNMENTAL PERMITS AND APPROVALS; COORDINATION Section 6.1 Permits and Approvals.Customer will cooperate fully with and assist OpTerra ES in obtaining all permits and approvals required under thi:, Contract. OpTerra ES is responsible for obtaining permits and approvals, required for the building, installation,and start-up of the Work hereunder which are required as of the Contract Effective Date. The Customer shall be responsible for obtaining any other permits or approvals that may be required,including annual operating permits as applicable. Section 6.2. Coordination During Installation.Customer and OpTerra ES shall cooperate to coordinate the activities of OpTerra ES and OpTerra ES' subcontractors and suppliers with those of Customer, its employees, and agents. OpTerra ES will use reasonable efforts not to interfere with the performance of business activities conducted by Customer or its employees without prior written approval of Customer which shall not be unreasonably withheld. SECTION 7. MEASUREMENT AND VERIFICATION SERVICES/COST SAVINGS GUARANTEES As detailed in Attachments 3F—Energy Management and Guarantee Services and 3G—Guaranteed Savings,OpTerra ES shall provide monitoring services and the related cost savings guarantees for energy and maintenance. SECTION 8. OWNERSHIP OF CERTAIN PROPERTY AND EXISTING EQUIPMENT Section 8.1. Ownership of Certain Proprietary Property Rights. Customer shall not, by virtue of this Contract, acquire any interest in any formulas,patterns,devices,secret inventions or processes,copyrights,patents,other intellectual or proprietary rights, or similar items of property which are or may be used in connection with the equipment. OpTerra ES shall grant to Customer a perpetual, irrevocable royalty-free license for any and all software or other intellectual property rights necessary for Customer to continue to operate, maintain,and repair the equipment in a manner that will yield maximal energy consumption reductions. Rev. Date: Page 6 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. Section 8.2. Ownership of Any Existing Equipment.Ownership of any equipment and materials presently existing at the Facilities at the time of execution of this Contract shall remain the property of the Customer even if it is replaced or its operation made unnecessary by work performed by OpTerra ES pursuant to this Contract. If applicable,OpTerra ES shall advise Customer in writing of all equipment and materials that will be replaced at the Facilities and Customer shall,within five(5)business days of OpTerra ES'notice, designate in writing to OpTerra ES which replaced equipment and materials that should not be disposed of off-site by OpTerra ES (the "Retained Items"). It is understood and agreed to by both Parties that Customer shall be responsible for and designate the location and storage for the Retained Items. OpTerra ES shall be responsible for the disposal of replaced equipment and materials, except for the Retained Items. OpTerra ES shall use commercially reasonable efforts to remove the Retained Items in such a manner as to avoid damage thereto,or if it is unreasonable to avoid damage altogether,to minimize the damage done. OpTerra ES shall not be responsible for the removal and/or disposal of any Hazardous Materials or substances except as required by the Scope of Work attached hereto. SECTION 9. LOCATION AND ACCESS Customer will provide sufficient space at the Facilities for the performance of the Work and the installation, storage, and operation of any equipment and materials and will take reasonable steps to protect any such equipment and materials from harm,theft and misuse. Customer shall provide access to the Facilities, including parking permits and identification tags, for OpTerra ES and subcontractors to perform its Work hereunder during regular business hours, or such other reasonable hours as may be requested by OpTerra ES and acceptable to Customer. rhe Customer shall also either provide a set or sets of keys to OpTerra ES and its subcontractors(signed out per Customer policy)or provide a readily available security escort to unlock and lock doors. Customer shall not unreasonably restrict OpTerra ES'access to Facilities to make emergency repairs or corrections as it may determine are needed. SECTION 10. INDEMNIFICATION/INSURANCE/BONDS Section 10.1. Indemnification.Intentionally Deleted. Section 10.2 Intentionally Deleted. Section 10.3 OpTerra ES Insurance. OpTerra ES will maintain, or cause to be maintained, for the duration of this Contract,the insurance coverage outlined in(a)through(f)below,and all such other insurance as required by Applicable Law. Evidence of coverage will be provided to Customer via an insurance certificate. (i) Workers'Compensation/Employers Liability for states in which OpTerra ES is not a qualified self-insured. Limits as follows: * Workers'Compensation: Statutory ' Employers Liability: Bodily Injury by accident$1,000,000 each accident Bodily Injury by disease$1,000,000 each employee Bodily Injury by disease$1,000,000 policy limit (ii) Commercial General Liability insurance with limits of: ' $2,000,000 each occurrence for Bodily Injury and Property Damage ' $4,000,000 General Aggregate-other than Products/Completed Operations ' $4,000,000 Products/Completed Operations Aggregate ' $2,000,000 Personal and Advertising Injury ' $ 100,000 Damage to premises rented to OpTerra ES Coverage to be written on an occurrence form. Coverage to be at least as broad as ISO form CG 0001 (04/13)or its equivalent forms,without endorsements that limit the policy terms with respect to:(1)provisions for severability of interest or(2)explosion,collapse,underground hazard. (iii) Auto Liability insurance for owned,hired and non-owned vehicles with limits of$1,000,000 per accident. Coverage to be written on an occurrence form. (iv) Professional Liability insurance with limits of: * $1,000,000 per occurrence * $2,000,000 aggregate Coverage to be written on a claims-made form. (v) Umbrella/Excess Liability Insurance. Limits as follows: * $1,000,000 each occurrence * $2,000,000 aggregate Coverage terms and limits to apply excess of the per occurrence and/or aggregate limits provided for Commercial General Liability and Professional Liability written on a claims made form. Coverage terms and limits also to apply in excess of those required for Employers Liability and Auto Liability written on an occurrence form. (vi) Policy Endorsements. * The insurance provided for Workers'Compensation and Employers'Liability above will contain waivers of subrogation rights against Customer but only to the extent of the indemnity obligations contained in this Contract. Rev. Date: Page 7 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ' The insurance provided for Commercial General Liability and Auto Liability above will: (a) include Customer as an additional insured with respect to Work performed under this Contract, but only to the extent of the indemnity obligations contained in this Contract,and (b) provide that the insurance is primary coverage with respect to all insureds,but only to the extent of the indemnity obligations contained in this Contract. Section 10.4 Performance and Payment Bonds. Prior to commencing Work under this Contract, OpTerra ES shall furnish a Performance Bond in an amount equal to one hundred percent(100%)of the Contract Amount,and a Payment Bond to guarantee payment of all claims for labor and materials furnished, in an amount equal to one hundred percent(100%) of the Contract Amount (collectively"Contract Bonds"). The Contract Bonds shall be maintained in full force and effect until Final Completion. The bonds are not being furnished to cover the performance of any energy guaranty or guaranteed savings under this Contract. SECTION 11, CONDITIONS BEYOND CONTROL OF THE PARTIES Section 11.1 Force Majeure Events. Neither Parry shall be considered to be in default in the performance of any material obligation under this Contract (other than the obligation to make payments)when a failure of performance shall be due to an event of Force Majeure. A list of Force Majeure events are listed in the Definition section of Attachment 2A. Neither Party shall be relieved of its obligation to perform if such failure is due to causes arising out of its own negligence or due to removable or remediable causes which it fails to remove or remedy within a reasonable time period. Either Parry rendered unable to fulfill any of its obligations under this Contract by reason of an event of Force Majeure shall give prompt written notice of such fact to the other Party. Section 11.2 Utility Work. Customer expressly understands and agrees that the definition "Force Majeure"above also includes any Interconnection Facilities work that may need to be performed by the local Utility("Utility")in order for OpTerra ES to fully implement the Project. "Interconnection Facilities"shall mean any distribution or transmission lines and other facilities that maybe required to connect equipment supplied under this Contract to an electrical distribution/transmission system owned and maintained by the Utility. Any Interconnection Facilities work that may be required will be performed by the Utility under a separate contract between Customer and the Utility. SECTION 12. EVENTS OF DEFAULT Section 12.' Events of Default by Customer. Each of the following events or conditions shall constitute an "Event of Default'by Customer: (i) any failure by Customer to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein, and such failure continues for thirty(30)calendar days after notice to Customer demanding that such failure to perform be cured;provided that(i)such failure to perform shall not deemed a default hereunder if it is due to causes beyond the control of Customer pursuant to Section 11 above;and(ii)if such cure cannot be effected in thirty(30)calendar days,Customer shall be deemed to have cured the default upon the commencement of a cure within thirty(30)calendar days and diligent subsequent completion thereof;or (ii) any representation or warranty furnished by Customer in this Contract which was false or misleading in any material respect when made;or (iii) any failure by Customer to pay any amount to OpTerra ES which is not paid within ten(10)days of written notice from OpTerra ES that the amount is past due unless the amount is disputed by customer in accordance with this contract.Nothing herein shall require the City to make any payment in a time period shorter than that required by the Texas Prompt Payment Act,Texas Government Code Chapter 2251 ("Prompt Payment Act"). Section 12.2. Events of Default by OpTerra ES. Each of the following events or conditions shall constitute an"Event of Default"by OpTerra ES: (i) any failure by OpTerra ES to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein,and such failure continues for thirty(30)calendar days after notice to OpTerra ES demanding that such failure to perform be cured;provided that(i)such failure to perform shall not be deemed a default hereunder if it is due to causes beyond the control of OpTerra ES pursuant to Section 11 above, and (ii) if such cure cannot be effected in thirty (30)calendar days, OpTerra ES shall be deemed to have cured the default upon the commencement of a cure within thirty(30)calendar days and diligent subsequent completion thereof;or (ii) any representation or warranty furnished by OpTerra ES in this Contract which was false or misleading in any material respect when made;or (iii) any lien or encumbrance is placed upon the equipment by any subcontractor laborer or supplier of OpTerra ES,which is not timely removed by OpTerra ES;provided that OpTerra ES has been duly paid for the Work and such lien or encumbrance is not the result of any act or failure to act of Customer. SECTION 13. REMEDIES UPON DEFAULT Section 13.1 Remedies upon Default by Customer. If an Event of Default by Customer occurs, OpTerra ES will be entitled to obtain any available legal or equitable remedies through dispute resolution proceedings instituted pursuant to Section 16 below including,without limitation,terminating this Contract or recovering amounts due and unpaid by Customer and/or damages which shall Rev. Date: Page 8 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. include OpTerra ES'reasonable,actual,direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations;legal fees and costs,and any payment or delivery required to have been on or before the date of the Event of Default and not made,including Interest(as defined in Attachment 3A)on any sums due,and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies. Section 13.2. Remedies Upon Default by OaTerra ES. If an Event of Default by OpTerra ES occurs, Customer shall be entitled to obtain any available legal or equitable remedies through dispute resolution proceedings instituted pursuant to Section 16 below, including,without limitation,terminating this Contract,or recovering amounts due and unpaid by OpTerra ES and/or damages,which shall include Customer's reasonable,actual,direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations;legal fees and costs;and any payment or delivery required to have been on or before the date of the Event of Default and not made, including Interest on any sums due, and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies. SECTION 14. ASSIGNMENT Section 14.1. Assignment. No interest, obligation or right of Vendor including the right to receive payment, under this contract shall be assigned or delegated to another entity without the express written consent of Buyer. Any attempted assignment or delegation of Vendor shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer giving its consent,Vendor agrees that Vendor shall provide,at no additional cost to Buyer,all documents,as determined by Buyer, that are reasonable and necessary to verify Vendor's legal status and transfer of rights, interests, or obligations to another entity. The documents that may be requested include,but are not limited to,Articles of Incorporation and related amendments,Certificate of Merger, IRS Form W-9 to verify tax identification number etc.Buyer reserves the right to withhold all payments to any entity other than Vendor if Vendor is not in compliance with this provision. If Vendor fails to provide necessary information in accordance with this section, Buyer shall not be liable for any penalties,fees or interest resulting therefrom. SECTION 15. SUBCONTRACTORS Section 15.1 Authority to Subcontract. OpTerra ES may delegate its duties and performance under this Contract with written permission from City, and shall have the right to enter into agreements with any subcontractors and other service or material providers as OpTerra ES shall select in its discretion to perform the Work hereunder. OpTerra ES shall not be required to enter into any subcontracts with parties whom OpTerra ES has not selected or subcontractors whom OpTerra ES has objection to using. Section 15.2 Prompt Payment of Subcontractors. OpTerra ES shall be subject to the Prompt Payment Act and shall accordingly pay,when due,all amounts payable for labor and materials furnished in the performance of this Contract so as to prevent any lien or other claim under any provision of the law from arising against any Customer property,against the contractor's rights to payments hereunder or against Customer, Section 15.3 Responsibility. OpTerra ES shall, at all times, be responsible for the acts, including negligence, errors and/or omissions of its subcontractors and agents. Nothing in this Contract shall constitute any contractual relationship between any others and the Customer or any obligation on the part of the Customer to pay,or to be responsible for the payment of,any sums to any OpTerra ES subcontractors. Section 15.4 Prevailing Wages. All employees of OpTerra ES and OpTerra ES'subcontractors performing Work for this Project shall be paid the per diem prevailing wages for the employee's job classification in the locality in which the Work is performed.The City of Fort Worth Prevailing Wage Rates Schedule is attached hereto as"Attachment_"and incorporated herein for all purposes. SECTION 16. DISPUTE RESOLUTION Section 16.01 Governing Law. Both parties agree that venue for any litigation arising from this contract shall be in Fort Worth,Tarrant County,Texas or the United States District Court, Northern District of Texas, Fort Worth Division.This contract shall be governed,construed and enforced under the laws of the State of Texas. If either Buyer or Vendor has a claim,dispute,or other matter in question for breach of duty,obligations,services rendered or any warranty that arises under this Agreement,the parties shall first attempt to resolve the matter through this dispute resolution process.The disputing party shall notify the other party in writing as soon as practicable after discovering the claim,dispute,or breach.The notice shall state the nature of the dispute and list the party's specific reasons for such dispute.Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort,either through email, mail, phone conference, in person meetings,or other reasonable means to resolve any claim,dispute,breach or other matter in question that may arise out of,or in connection with this Agreement.If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter to non-binding mediation upon written consent of authorized representatives of both parties in accordance with the Industry or other applicable rules governing mediation then in effect.If the parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute in a court of competent jurisdiction. SECTION 17 REPRESENTATIONS AND WARRANTIES Each Party warrants and represents to the other that: (i) it has all requisite power,authority,licenses,permits,or otherwise,to execute and deliver this Contract and perform its obligations hereunder; Rev. Date: Page 9 of 30 ESC—General Version 1 September.2014 OpTerra Energy Services, Inc. (ii) the execution, delivery, and performance of this Contract have been duly authorized by, or are in accordance with, OpTerra ES' Board of Directors and Customer's governing entity, and this Contract has been duly executed and delivered for it by the signatories so authorized,and it constitutes its legal,valid,and binding obligation; (iii) its execution, delivery,and performance of this Contract will not breach or violate, or constitute a default under any Contract,lease or instrument to which it is a Party or by which it or its properties may be bound or affected;and (iv) it has not received any notice,nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially and adversely affect its ability to perform hereunder. SECTION 18. WAIVER OF LIENS Upon request from Customer, OpTerra ES shall provide Customer with Progress Payment Waivers and Releases for Work OpTerra ES has been paid up to that date and shall similarly provide Progress Payment Waivers and Releases from any and all subcontractors or suppliers. Concurrent with a notice of Final Completion issued by OpTerra ES for final payment for the Work(including payment of any retentions),OpTerra ES will provide Customer with a Final, Unconditional Waiver and Release for OpTerra ES and any subcontractors or suppliers. SECTION 19. TERMINATION Section 19.1 Termination for Cause. If there is an Event of Default by either Party under this Contract,pursuant to the provisions of Section 12 unless such Event of Default has been cured within the applicable time periods for a cure set forth in such Section 12 in addition to the remedies provided for in Section 13 the non-defaulting Party may terminate this Contract by providing three (3) business days'notice to the defaulting Party in the case of a monetary default and ten(10)business days'notice to the defaulting Party in the case of a non-monetary default. Upon termination of this Contract,each Party shall promptly return to the other all papers,materials, and property of the other held by such Party in connection herewith. Each Party shall also assist the other in the orderly termination of this Contract and the transfer of all aspects hereof,tangible and intangible,as may be necessary for the orderly,non-disrupted business continuation of each Party. If the Contract is so terminated,OpTerra ES shall be entitled to payment for Work satisfactorily performed, earned profit and overhead,and costs incurred in accordance with this Contract up to the date of termination. Section 19.2 Intentionally Deleted. Section 19.3 Optional Termination by OpTerra ES. For any Contract Year beginning with the third year,upon completion of that year's Energy Savings Report, OpTerra ES has the right to terminate this Contract at its sole discretion. If the Contract is so terminated, OpTerra ES shall calculate the average Energy Unit Savings which have occurred over all previous Contract Years. The Average Annual Energy Unit Savings will be applied to all subsequent Contract Years to determine the EC Savings (as defined in ATTACHMENT 3F)for each remaining Contract Year. The annual Measurement&Verification Fee,if any,for each Contract Year will be deducted from the corresponding Guaranteed Savings shown in Attachment 3G to determine the Adjusted Guaranteed Savings. Applying EC Savings for each subsequent year as detailed in Attachment 2H, if the EC Savings for any future year exceeds the Adjusted Guaranteed Savings for that year,then OpTerra ES'guarantee shall have been met for that year. Should the Customer's total EC Savings for any future Measurement Year be less than the Adjusted Guaranteed Savings for that year,OpTerra ES guarantees that it shall pay to the Customer,within 30 days of the acceptance of the annual energy savings report,the net present value of the difference between the adjusted Guaranteed Savings for any such year(s)and the total EC Savings for that Measurement Year(s). Net present value will be determined using a discount rate of 10%. At their mutual agreement,Customer and OpTerra ES may choose to continue all or a portion of OpTerra ES'on-going energy management services for a mutually agreeable fee. Section 19.4 Termination by City:In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for payments due under this contract,then City will immediately notify OpTerra ES of such occurrence and this contract shall be terminated on the last day of the fiscal period for which funds have been appropriated without penalty or expense to City of any kind whatsoever,except to the portions of annual payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. The performance of work or purchase of goods under this order may be terminated in whole or in part by City,with or without cause, at any time upon the delivery to OpTerra ES of a written "Notice of Termination"specifying the extent to which performance of work or the goods to be purchased under the order is terminated and the date upon which such termination becomes effective.Such right of termination is in addition to and not in lieu of any other termination rights of City as set forth herein. SECTION 20. CONSTRUCTION OF CONTRACT This Contract is the result of arms-length negotiations between two sophisticated parties and ambiguities or uncertainties in it shall not be construed for or against either Party,but shall be construed in a manner that most accurately reflects the intent of the Parties when such Contract was executed. SECTION 21. BINDING EFFECT Except as otherwise provided herein,the terms and provisions of this Contract shall apply to,be binding upon,and inure to the benefit of the Parties hereto and their respective heirs,legal representatives,successors,and permitted assigns. Rev. Date: Page 10 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. SECTION 22. INDEPENDENT CONTRACTOR OpTerra ES shall operate hereunder as an independent contractorand not as an officer, agent, servant or employee of City. OpTerra ES shall have exclusive control of, and the exclusive right to control, the details of its operations hereunder, and all persons performing same,and shall be solely responsible for the acts and omissions of its officers,agents,employees,vendors and sub-vendors. The doctrine of respondeat superior shall not apply as between City and OpTerra ES, its officers, agents, employees, vendors and subvendors. Nothing herein shall be construed as creating a partnership or joint enterprise between City and OpTerra ES, its officers, agents,employees,vendors and subvendors. SECTION 23. NO WAIVER The failure of OpTerra ES or Customer to insist upon the strict performance of the terms and conditions of this Contract shall not constitute or be construed as a waiver or relinquishment of either Party's right to thereafter enforce the same in accordance with this Contract in the event of a continuing or subsequent default on the part of OpTerra ES or Customer. SECTION 24. SEVERABILITY In the event that any clause or provision of this Contract or any part thereof becomes or shall be declared by a court of competent jurisdiction invalid,illegal,void,or unenforceable,this Contract shall continue in full force and effect without said provisions,provided that no such severability shall be effective if it materially changes the benefits or obligations of either Party hereunder. SECTION 25. Intentionally Deleted. SECTION 26. NOTICE Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally or sent by registered or certified mail,return receipt requested,postage prepaid,or delivered to a nationally recognized express mail service,charges prepaid,receipt obtained,to the address shown below or to such other persons or addresses as are specified by similar notice. TO OPTERRA ES: OpTerra Energy Services,Inc. 12980 Foster Drive,Suite 400 Overland Park,KS 66213 Tel: (913)225-7097 Attention:Eric Cox With a COPY TO: OpTerra Energy Services, Inc. 12980 Foster Street,Suite 400 Overland Park,KS 66213 Tel: 913-225-7081 Fax: 913-653-0013 Attention:Legal Department TO CUSTOMER: City of Fort Worth,Texas 5001 James Avenue,Suite 301 Fort Worth,TX 76115 Tel: (817)392-8779 Attention:Marisa Conlin With a Copy to: City Manager's Office 200 Texas Street Fort Worth,TX 76102 SECTION 27. HEADINGS Headings and subtitles used throughout this Contract are for the purpose of convenience only,and no heading or subtitle shall modify or be used to interpret the text of any section. SECTION 28. CONFLICTS OF INTEREST Conflicts of interest relating to this Contract are strictly prohibited.Except as otherwise expressly provided herein,no Party nor any director employee or agent of any Party shall give to or receive from any director employee or agent of any other Party any gift, entertainment or other favor of significant value,or any commission,fee or rebate in connection with this Contract. Likewise,no Party nor any director,employee or agent of any Party,shall without prior notification thereof to all Parties enter into any business relationship with any director,employee or agent of another Party or of any Affiliate of another Party,unless such person is acting for and on behalf of the other Party or any such Affiliate. A Party shall promptly notify the other Parties of any violation of this section and any consideration received as a result of such violation shall be paid over or credited to the Party against whom it was charged. Any representative of any Party,authorized by that Party,may audit the records of the other Parties related to this Contract, including the expense records of the Party's employees involved in this Contract,upon reasonable notice and during regular business hours,for the sole purpose of determining whether there has been compliance with this Section. Rev. Date: Page 11 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. SECTION 29. Intentionally Deleted. SECTION 30. GREENHOUSE GAS REDUCTIONS As authorized by Section 1605(b)of the Energy Policy Act of 1992 (42 U.S.C. 13385(B))the U.S. Department of Energy has issued,and may issue in the future,guidelines for the voluntary reporting of Greenhouse Gas emissions("DOE Guidelines"). "Greenhouse Gases"shall mean those gases and other particles as defined in the DOE Guidelines. Customer hereby assigns and transfers to OpTerra ES,and its affiliates and assigns,any Greenhouse Gas emission reduction credits that result from the Work under this Contract. SECTION 31. TRADE SECRETS Any information submitted to the City may be requested by a member of the public under the Texas Public Information Act. TEX.GOV'T CODE ANN.§§552.002,552.128(c).If the City receives a request for OpTerra ES's marked proprietary information,OpTerra ES will be notified and given an opportunity to make arguments to the Texas Attorney General's Office (the"AG") regarding reasons OpTerra ES believes that its information may not lawfully be released. If OpTerra ES does not make arguments or the AG rejects the arguments OpTerra ES makes,OpTerra ES's information will be released without penalty to the City. SECTION 32. MUNICIPAL ADVISOR The Parties acknowledge and agree that OpTerra ES is not a municipal advisor and cannot give advice to Customer with respect to municipal securities or other municipal financial products absent Customer being represented by,and relying upon the advice of,an independent registered municipal advisor. OpTerra ES is not subject to a fiduciary duty with regard to Customer or the provision of information to Customer. Customer will consult with an independent registered municipal advisor about the financing option appropriate for Customer's situation. SECTION 33. IMMIGRATION NATIONALITY ACT City actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. OpTerra ES shall verify the identity and employment eligibility of all employees who perform work under this Agreement.OpTerra ES shall complete the Employment Eligibility Verification Form(1-9),maintain photocopies of all supporting employment eligibility and identity documentation for all employees,and upon request,provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement.OpTerra ES shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. OpTerra ES shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement.OpTerra ES shall indemnify City from any penalties or liabilities due to violations of this provision.City shall have the right to immediately terminate this Agreement for violations of this provision by OpTerra ES. SECTION 34. RIGHT TO AUDIT OpTerra ES agrees that the City, or City's authorized representative, shall, until the expiration of three (3) years after final payment under this contract, and at no additional cost to City, have access to and the right to examine and copy any directly pertinent books,computer disks, digital files,documents, papers and records of the OpTerra ES involving transactions relating to this contract, including any and all records maintained pursuant to Section 31 of this Attachment. OpTerra ES agrees that the City shall have access, during normal working hours, to all necessary OpTerra ES facilities,and shall be provided adequate and appropriate workspace,in order to conduct audits in compliance with the provisions of this section.City shall pay OpTerra ES for reasonable costs of any copying in accordance with the standards set forth in the Texas Administrative Code.The City shall give OpTerra ES reasonable advance written notice of intended audits, but no less than ten (10)business days. SECTION 35. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL OpTerra ES acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the pompany that it: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract,OpTerra ES certifies that OpTerra ES's signature provides written verification to the City that OpTerra ES:(1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. SECTION 36. NON-DISCRIMINATION This contract is made and entered into with reference specifically to Chapter 17,Article III,Division 3("Employment Practices"), of the City Code of the City of Fort Worth (1986), as amended, and OpTerra ES hereby covenants and agrees that OpTerra ES, its employees,officers,agents,vendors or subvendors, have fully complied with all provisions of same and that no employee, participant, applicant,Contractor(s)or subContractor(s)has been discriminated against according to the terms of such Ordinance by OpTerra ES,its employees,officers,agents,Contractor(s)or subvendors herein. Rev. Date: Page 12 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3 CONSTRUCTION/INSTALLATION TERMS AND CONDITIONS ATTACHMENT 3 A DESIGN/BUILD TERMS AND CONDITIONS ARTICLE 1. DEFINITIONS For purposes of the Energy Services Contract,and its Attachments,the defined terms herein shall have the meaning set forth as follows: 1. Applicable Laws: "Applicable Laws"shall mean all laws,building codes,rules,regulations,or orders of any federal,state,county,local, or other governmental body,agency,or other authority having jurisdiction over the performance of the Work,as may be in effect at the time the Work is undertaken. 2. Applicable Permits: "Applicable Permits"shall mean all permits,waivers,authorizations,or licenses issued or required to be issued by any federal,state,county,local,or other governmental body,agency,or other authority having jurisdiction over the performance of the Work,as may be in effect at the time the Work is undertaken. 3. Beneficial Use: "Beneficial Use"shall mean when major new equipment and systems included in the Scope of Work are properly installed, inspected, operational,and are being used for their intended purpose. A Certificate of Beneficial Use,which identifies when Customer took Beneficial Use of the Work,may be prepared and issued by OpTerra ES to the Customer and Subcontractor. 4. Change: "Change"shall mean any addition to,deletion from,suspension of,or other modification to the quality,function,or intent of the Work, including without limitation any such addition, deletion, suspension, or other modification that effects a change in the Scope of Work that is specified by the Contract. An unforeseen condition experienced by OpTerra ES during the course of the Work is included within the definition of "Change". 5. Change Order: "Change Order"shall mean a written document signed by both OpTerra ES and the Customer that authorizes OpTerra ES to perform a change and/or modification to the Scope of Work. The Change Order shall modify the Scope of Work and shall identify: (1)the change and/or modification to the Scope of Work; (2) any additional compensation to be paid to OpTerra ES to perform such change and/or modification;and(3)any extensions of Time to the Project Schedule to perform such change and/or modification. 6. Claims: "Claims"shall mean any and all actions,claims, losses,damages, expenses, or liabilities of either party arising from or as a result of these Terms and Conditions,the Contract,any addenda to the Contract,and/or Change Orders. 7. Construction: "Construction"shall mean any Work to be performed that involves any and all construction,alteration,repair,installation or removal of equipment, addition to, subtraction from, improving, moving, wrecking or demolishing any building, parking facility, excavation,or other structure or improvement,or any part thereof. 8. Construction Documents: "Construction Documents" shall mean the final designs, drawings, and specifications that are used for construction, and any Change Orders affecting those documents,that describe the technical requirements for the installation of all the materials and equipment pursuant to the Contract and its Attachments. 9. Contract: "Contract"shall mean the Contract and all Attachments attached thereto which are incorporated therein,as it may be amended or modified from time to time in accordance with the provisions thereof. 10. Contract Amount: "Contract Amount"shall mean the amount of compensation, exclusive of the Annual Guarantee Fee,that shall be paid by Customer to OpTerra ES for performing the Work in accordance with the Scope of Work,attached hereto as Attachment 3E. 11. Contract Term: The"Contract Term"shall commence on the Contract Effective Date and cease on the last day of the Energy Savings Term,unless terminated earlier. 12. Contract Documents: "Contract Documents" shall mean the Energy Services Contract, its Attachments, Construction Documents, Change Orders,and any amendments thereto. 13. Contract Effective Date: "Contract Effective Date"shall mean the date the Contract is fully executed and is in full force and effect. 14. Excusable Delay: "Excusable Delay"shall mean OpTerra ES shall be entitled to an extension of Time and/or additional compensation caused by an Excusable Delay that shall be defined as (1)by an act or failure to act of,or other delay caused by,Customer or its agents or employees;(2)by failures of any governmental authorities to make timely inspection of the Work or by unanticipated efforts necessary to secure governmental approvals for the Project;(3)by delays resulting from the securing of permits for the Work;(4)by labor disputes, fire,vandalism,delay in manufacturing and deliveries;(5)by adverse weather conditions not reasonably anticipated; (6)by unforeseen site conditions,including discovery or existence of Hazardous Substances;(7)by unavoidable casualties or other causes beyond OpTerra ES' control; (8) by delays caused by processing Change Orders requested by or agreed to by Customer, or resulting from the implementation of any Change Order:or(9)by delay caused by pending arbitration,or(10)any other cause outside OpTerra ES'control. 15. Final Completion: "Final Completion"shall mean when 100%of the engineering and construction Work as identified in the Scope of Work has been completed,including completion of all required training,and delivery to the Customer of the final close-out documentation (as-built drawings, O&M Manuals, and warranty documentation). A Certificate of Final Completion may be executed for an individual subcontract,a specific building,or a portion of the Work. A Certificate of Final Completion will be executed at the Final Completion of the entire Work upon the City's approval and acceptance of all Work. 16. Force Majeure: "Force Majeure"shall mean those events caused beyond the control of the affected Party and which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which it has been unable to overcome,including acts of God and the public enemy; relocation or construction of transmission facilities or the shutdown of such facilities for the purpose of Rev.Date: Page 13 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. necessary repairs;work by local Utility;flood,earthquake,tornado,storm,fire;civil disobedience,labor disputes,strikes,labor or material shortages, delay in manufacturing and deliveries of equipment; sabotage; restraint by court order or public authority(whether valid or invalid),and/or inability to obtain or keep in force the necessary governmental authorizations,permits,licenses,certificates or approvals if not caused by the fault of the Party asserting the Force Majeure. 17. Hazardous Substances: "Hazardous Substances" shall mean any hazardous, toxic, or dangerous wastes, substances, chemicals, constituents,contaminants,pollutants,and materials and any other carcinogenic,liquids,corrosive,ignitable,radioactive,reactive,toxic, or otherwise hazardous substances or mixtures (whether solids, liquids, gases) now or at any time subject to regulation, control, remediation, or otherwise addressed under Applicable Laws; (i)any"hazardous substance"as defined by the Resource, Conservation and Recovery Act of 1976 (42 United States Code ("U.S.C.") , Section 6901 et seg.), as amended, and regulations promulgated thereunder;(ii)any"hazardous,toxic or dangerous waste,substance or material"specifically defined as such in U.S.C.Section 9601 et seq.),as amended and regulations promulgated thereunder; and(iii)any hazardous,toxic or dangerous waste,substance,or material as defined in any so-called"superfund"or"superlien"law. 18. Installation: "Installation"shall mean the setting up,construction,and placement of any equipment or materials in the manner it will be operated,in accordance with the Scope of Work and in accordance with all Applicable Laws. 19. Interest: "Interest"shall mean interest calculated at the lesser of the per annum rate of interest announced from time to time by Citibank, at its"prime"rate for commercial loans plus two percent(2%)or the maximum rate permitted by Applicable Laws. 20. Losses: "Losses"shall mean claims,actions,damages,losses,liabilities,costs,and/or expenses including reasonable attorney's fees. 21. Material Changed Condition: "Material Changed Condition"shall mean one or more of the following conditions that impact the Project Schedule and/or the Contract Amount:(i)parties outside the control of OpTerra ES caused delays in Project Schedule;(ii)the discovery of differing and unexpected site conditions not previously disclosed by Customer and could not have been readily discoverable by OpTerra ES prior to start of Work;(iii)the discovery of Hazardous Substances not previously disclosed;(iv)adverse weather conditions not reasonably anticipated; (v)delay in equipment and material deliveries outside OpTerra ES'control;and(vi)any other condition that could not have been reasonably anticipated by the Parties and is outside OpTerra ES'control. 22. Party or Parties: "Party"or"Parties"shall mean OpTerra ES,Customer,each or both of them,as the context may require pursuant to the terms and conditions of the Contract. 23. Proiect: "Project"shall mean the entirety of Work to be performed by OpTerra ES pursuant to the terms and conditions of the Scope of Work,and any Change Orders,as well as all efforts of Customer,and other entities,all as an integrated whole. 24. Project Location: "Project Location"shall mean that area or areas where the Project materials and equipment and any other energy related equipment as described in the Scope of Work shall be performed and/or installed. 25. Scope of Work:"Scope of Work"shall mean the Work to be performed hereunder by OpTerra ES,and/or OpTerra ES'subcontractors, pursuant to the Scope of Work(as amended by Change orders),attached hereto as Attachment 3C,and in accordance with the terms and conditions of the Contract and its Attachments,as amended. 26. Substantial Completion: "Substantial Completion"shall mean the stage in the progress of the Work or portion of the Work,where the Work or portion of the Work is sufficiently complete in accordance with the Contract Documents so that Customer can utilize and take beneficial use of the Work for its intended use or purpose. A Certificate of Substantial Completion may be executed for an individual subcontract,a specific building,a portion of the Work,or the entire Work. 27. Time: "Time"shall mean the time period within which OpTerra ES shall complete the Work in accordance with the Project Schedule. 28. Work: "Work" shall mean the design, procurement, installation and/or construction required for the Project and includes all labor necessary to produce such services, all materials, fabrication,assemblies, and equipment incorporated or to be incorporated in such construction necessary to achieve Final Completion of the Project,including such materials and equipment which may be consumed or use but not actually incorporated in such construction. The Work may include design,supplying, installing, constructing,maintaining, operating, and warranting certain materials and equipment, and providing any other energy-related services specified in the Scope of Work. ARTICLE 2. PROJECT IMPLEMENTATION-GENERAL 1, Project Meetings/Status Updates. During the Design and Construction Phases of the Project,OpTerra ES will meet with Customer to review equipment,scope of work,and installation plans that relate to the design and construction of the Project. Also during the course of the Work,OpTerra ES will periodically provide reports to the Customer of the general status and progress of the Work. 2. Project Location Access.Customer hereby grants to OpTerra ES,without cost to OpTerra ES,all rights of ingress and egress at the Project Location identified in the Scope of Work,necessary for OpTerra ES to perform all Work and provide all services contemplated by the Contract and the Scope of Work. OpTerra ES shall provide 24 hour advanced notice to Customer for access to any Customer Facilities. 3. Project Schedule. The Project Schedule attached hereto as Attachment 3D, "Project Schedule", is a preliminary, estimated Project Schedule. During the course of Project implementation,both the Customer and OpTerra ES shall perform their respective obligations in an expeditious manner that is consistent with reasonable skill and care for the type of project described in the Scope of Work and in keeping with the orderly progress of the Work pursuant to the terms of the Scope of Work. The estimated Project Schedule will be finalized during the completion of the Construction Documents, provided that such Final Schedule will be subject to amendment and revision to take into account any Excusable Delays (as defined herein). Subject to any such Excusable Delays, OpTerra ES and its subcontractors shall work diligently to implement the Project in accordance with the Project Schedule and OpTerra ES shall notify Customer regarding any and all revisions to the Project Schedule necessitated by such delay. Rev. Date: Page 14 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ARTICLE 3. FINAL DESIGN PHASE-CONSTRUCTION DOCUMENTS/EQUIPMENT PROCUREMENT. 1. General Provisions. (a) As soon as possible after the Contract Effective Date, OpTerra ES will proceed with the preparation of any necessary designs, drawings,and specifications related to the Scope of Work identified in Attachment 3C. (b) Upon the issuance of the Notice to Proceed and upon completion of the design phase, OpTerra ES shall order the equipment identified in the Scope of Work,and any other necessary materials and supplies in order to meet the Project Schedule. (c) Customer shall designate a single-point representative with whom OpTerra ES shall consult on a reasonable,regular basis and who is authorized to act on Customer's behalf with respect to the Project design.Customer's representative shall render decisions in a timely manner with regard to any documents submitted by OpTerra ES and to other requests made by OpTerra ES in order to avoid unreasonable delay in the orderly and sequential progress of OpTerra ES'design services. (d) Within ten(10)business days of OpTerra ES'request,Customer shall: 1) furnish all surveys or other information in Customer's possession that describe the physical characteristics, legal limitations, and utility locations in and around the Project Location; 2) disclose any prior environmental review documentation and all known information in its possession concerning subsurface conditions,including without limitation the existence of any known Hazardous Substances,in or around the general area of the Project Location where the Work will be performed pursuant to the Scope of Work; 3) supply OpTerra ES with all relevant information in Customer's possession,including any as-built drawings and photographs, of prior construction undertaken in the general area where the Work will be performed pursuant to the Scope of Work;and 4) obtain any and all easements, zoning variances, planning approvals, including any resolution of any environmental impact issues,and any other legal authorization regarding utilization of the Project Location site essential to the execution of the Work. (e) All information furnished pursuant to this section shall be supplied at Customer's expense,and OpTerra ES is entitled to rely upon the accuracy and completeness of all information provided. Customer acknowledges that any failure to provide the information specified in subsection(d)above to OpTerra ES may result in an Excusable Delay as defined herein. (f) In the event that any information is disclosed under this section that constitutes a Change to the Work and/or is a Material Changed Condition,OpTerra ES will provide notice to Customer within ten(10)business days after receipt of this information,and the parties will meet and confer with respect to those Changes. If Customer authorizes a Change Order OpTerra ES shall be compensated, and receive an extension of Time for performance, if necessary,to perform the additional Work in accordance with Terns and Conditions. If the parties are unable to agree on whether Customer's disclosed information constitutes a Change to the Work or a Material Changed Condition,those disputes shall be resolved in accordance with Section 16 of Attachment 2 of the Contract. (g) OpTerra ES contemplates that it will not encounter any Hazardous Substances at the Project Location,except as has been disclosed as a Pre-Existing Condition by the Customer prior to the execution of the Contract. However any disclosure of Hazardous Substances that will affect the performance of the Work after the execution of the Contract shall constitute a valid basis for a Change Order pursuant to these Terms and Conditions. (h) Customer agrees that for the Work on the Project hereunder OpTerra ES shall be the"designer"as that term is identified in the Energy Policy Act of 2005,and OpTerra ES shall have the exclusive right to report to any federal,state,or local agency,authority or other party,including without limitation under Section 179D of the Energy Policy Act of 2005,any tax benefit associated with the Work. Upon Final Completion,Customer agrees to execute a Written Allocation including a Declaration related to Section 179D of the Internal Revenue Code. OpTerra ES will prepare the Declaration and all accompanying documentation. OpTerra ES will be designated the Section 179D beneficiary. 2. Review of Construction Documents. (a) OpTerra ES will prepare and submit all designs,drawings,and specifications to the Customer for review. Customer shall review the documents and provide any comments in writing to OpTerra ES within ten (10) business days after receipt of documents. OpTerra ES will incorporate appropriate Customer comments into the final designs, drawings, and specifications, as applicable. The terms and conditions of any permit approvals required for the Project will be provided. OpTerra ES reserves the right to issue the designs,drawings,and specifications in phases to allow the construction to be performed in phases. If Customer fails to provide written comments within the ten (10) business day period, Customer shall be deemed to have no comments regarding the documents. 3. Permits and Approvals. The respective obligations of the Parties in obtaining permits and approvals are as specified in Section 6 of Attachment 2 of the Contract.Customer shall agree to any nonmaterial changes to the designs,drawings,and specifications required by any governmental authority having jurisdiction over the Work. The Contract Amount provided for in the Scope of Work shall be increased by any additional cost incurred by OpTerra ES due to a change required by a governmental authority and the time required to complete the Work pursuant to the Project Schedule will be increased by the number of additional days required to complete the Work because of a governmentally imposed change in the Project. 4. Changes During Final Desiqn Phase. If during the design phase Customer requests changes and/or modifications to the Work identified in the Scope of Work and/or there are Material Changed Conditions,as defined in Article 1 above,Customer shall be responsible for payment of the extra costs caused by such modifications and/or changes. Valid bases for additional compensation and/or Time extension include, but are not limited to: (i)Customer requests changes and/or modifications to the Project Scope of Work during the Project Design Phase; (ii) Customer caused delays during OpTerra ES' design work; (iii) the discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed as of the Contract Effective Date;(iv)the discovery of Hazardous Substances at or impacting the Project Location;(v)changes to the Scope of Work required to obtain certain permits;(vi)damage to any equipment or other Work installed by OpTerra ES caused by the act or omission of Customer, its agents or employees; (vii) changes and/or modifications to Scope of Work ordered by any governmental authority having jurisdiction over the Project;and(viii)any other condition Rev.Date: _ Page 15 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. that would not reasonably have been anticipated by OpTerra ES that modifies and/or changes the Scope of Work that increases the agreed upon Contract Amount or increases in the Time needed to complete the Work identified in the Scope of Work. ARTICLE 4. CONSTRUCTION PHASE. 1. General Provisions. Upon securing necessary permits,pursuant to Section 6 of Attachment 2 of the Contract,and completion of Final Construction Documents by Customer, OpTerra ES will commence the construction of the Project in accordance with the Final Construction Documents. The construction will be performed by OpTerra ES and/or one or more licensed subcontractors qualified to perform the Work. The construction will be performed in accordance with all Applicable Laws and Applicable Permits. 2. OpTerra ES'Responsibilities During Construction Phase. (a) As an independent contractor to Customer OpTerra ES will be responsible for providing,or causing to be provided by OpTerra ES' subcontractor(s), all labor materials, equipment, tools, transportation, and other facilities and services necessary for the proper execution, construction, and completion of the Work as defined in the Scope of Work and any Change Orders. OpTerra ES is hereby required to purchase in advance all necessary materials and supplies for the construction of the Project in order to assure the prompt and timely delivery of the completed Work pursuant to the Project Schedule. OpTerra ES will also be responsible for all means, methods, techniques, sequences, and procedures employed for the construction required by the final Construction Documents. (b) OpTerra ES will make all reasonable efforts to coordinate construction activities and perform the Work to minimize disruption to Customer's operations at the Project Location. OpTerra ES will provide at least thirty(30)calendar days written notice to Customer of any planned power outages that will be necessary for the construction. OpTerra ES will cooperate with Customer in scheduling such outages,and Customer agrees to provide its reasonable approval of any scheduled outage. (c) OpTerra ES will be responsible for initiating and maintaining safety precautions and programs in connection with its construction of the Project. OpTerra ES will take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage,injury,or loss to:(1)employees of OpTerra ES and subcontractors performing Work under this Contract;(2)OpTerra ES' property and other materials to be incorporated for the Project, under the care, custody, and control of OpTerra ES or its subcontractors;and(3)other property at or adjacent to the Project Location not designated for removal,relocation,or replacement during the course of construction. OpTerra ES will not be responsible for Customer's employees' safety unless OpTerra ES' negligence in the performance of its Work is the proximate cause of the employee's injury. (d) Based on the final Construction Documents,OpTerra ES will obtain required building permits for Project Construction. Customer will cooperate with OpTerra ES in securing such permits. (e) OpTerra ES will maintain in good order at the Project Location copies of the Scope of Work,all Change Orders,the Contract(with all Attachments),one record copy of all drawings,specifications,product data,samples,manufacturer's operation&maintenance manuals,and other pertinent construction-related documents. (f) Systems Startup and Equipment Commissioning. OpTerra ES shall provide notice to Customer of any scheduled test(s)of installed equipment,and Customer and/or its designees shall have the right to be present at any or all such tests conducted by OpTerra ES, any subcontractor and/or manufacturers of the equipment. OpTerra ES shall be responsible for correcting and/or adjusting all deficiencies in systems and equipment operations that OpTerra ES provided and installed that may be observed during equipment commissioning procedures. (g) The following duties shall be performed by OpTerra ES: Organize and conduct a pre-construction meeting with the Customer and each subcontractor. Organize and conduct regularly scheduled progress meetings throughout the installation period. Schedule and manage all subcontractors and related work. Provide the Customer a single point of contact and responsibility of all work related to the project. Investigate and resolve design,construction,and field issues as they arise during the project Coordinate on-site work,and schedule accordingly with Customer Perform progress inspections throughout the installation period. Provide the Customer and Subcontractor with results of findings. Identify any existing Customer equipment that is found during implementation of the work not to be functioning properly, and notify in writing to Customer, Provide regular status reports to the Customer. When appropriate, initiate a thorough inspection of the work with the Customer and Subcontractor to obtain substantial completion. Check,test,and start-up each item of equipment. Identify any existing Customer equipment that is found not to be functioning properly,and notify in writing to Customer. With the Customer and Subcontractor„perform final inspection of the Work. Review subcontractor invoices and authorize payment as appropriate. Obtain/prepare final as-built documentation for the project, and deliver to the Customer. Documentation shall include O&M manuals as appropriate,warranty information,and as-built drawings and related information. Obtain a certificate of final completion,signed by the Customer.Subcontractor,and OpTerra ES. 3. Customer's Responsibilities During Construction Phase. (a) Customer shall designate a single-point representative authorized to act on Customer's behalf with respect to Project construction and/or equipment installation. Customer may from time to time change the designated representative and shall provide notice to OpTerra ES of such change. Any independent review of the construction shall be undertaken at Customer's sole expense,and it shall be performed in a timely manner so as to not unreasonably delay the orderly progress of OpTerra ES'Work. Any independent Rev.Date: Page 16 of 30 ESC—General Version 1 September,2014 OpTerra Energy Services, Inc. review of the construction by Customer shall not relieve OpTerra ES of any of its obligations or responsibilities hereunder. (b) Intentionally Deleted. (c) Customer shall remain responsible for the maintenance of the portion of the Project Location that is not directly affected by OpTerra ES'Work. Customer shall keep the designated Project Location and staging area for the Project free of obstructions, waste, and materials within the control of Customer. (d) Customer shall be solely responsible for obtaining any required environmental clearance from and any special permits required by any federal,state,and local jurisdictions prior to scheduled construction start date. (e) Customer shall be responsible for the preparation of the designated Project Location site for construction,including, but not limited to,clearance of all above and below ground obstructions,such as vegetation,buildings,appurtenances,and utilities. (f) Customer shall be solely responsible for the removal of any Hazardous Substances either known to Customer prior to the commencement of the Work or encountered by OpTerra ES during the construction of the Project,if necessary in order for the Work to progress safely,that was not knowingly released or brought to the site by OpTerra ES. OpTerra ES will respond to the discovery of Hazardous Substances at or around the Project Location during the course of OpTerra ES' construction in accordance with Section 6,"Hazardous Substances",below. (g) Customer shall coordinate the Work to be performed by OpTerra ES with its own operations and with any other construction project that is ongoing at or around the Project Location,with the exception that OpTerra ES will coordinate the Interconnection Facilities work,if any,that will be performed by the local utility. (h) Customer shall allow OpTerra ES and its Subcontractors access to and reasonable use of necessary quantities of Customer's water and other utilities,including electrical power as needed for the construction of the Work,at no extra cost to OpTerra ES. (i) Customer will provide OpTerra ES and/or its Subcontractors with reasonable access to the Project Location to perform the Work, including without limitation and at no extra cost to OpTerra ES,access to perform Work on Saturdays,Sundays,legal holidays,and non-regular working hours. Q) The Customer shall also do the following: Attend the regularly scheduled progress meetings. Participate as needed regarding scheduling of work. When appropriate, participate in the job inspection walk-through with OpTerra ES and the subcontractor to determine Substantial Completion or beneficial use of major equipment. Sign the Certificate of Substantial Completion, as appropriate. Perform a final walk-through of the project. Upon receipt of the O&M Manuals and as-built drawings,sign the Certificate of Final Completion for the related Work. The Customer is encouraged to provide a staff member(s)(HVAC technician,etc.)to accompany OpTerra ES during the EMS Commissioning. This is an excellent opportunity to learn in-depth the operation and installation of the EMS. Provide knowledgeable staff to participate in the training programs, which will be scheduled in advance for proper coordination. Upon the completion of the entire Scope of Work as listed in Attachment 3C,including training,and close-out documents, sign a Certificate of Final Completion for Entire Implementation Project. 4. Changes During Construction. (a) Change Orders Generally. Changes and/or modifications to the Scope of Work shall be authorized by a written Change Order signed by both Customer and OpTerra ES. The Change Order shall state the change and/or modification to the Scope of Work, any additional compensation to be paid,or extension of Time,if needed,to OpTerra ES to perform such change and/or modification. OpTerra ES may,at its election,suspend performance of that portion of the Work affected by any proposed Change Order until an agreement has been reached with the Customer regarding the Change Order. OpTerra ES will use its reasonable efforts to continue other portions of the Work not affected or impacted by such proposed Change Order until such time as the Change Order is resolved. In addition,if Customer requests a proposal from OpTerra ES for a change to the Scope of Work and Customer subsequently elects to not proceed with such change, Customer agrees that a Change Order shall be issued to reimburse OpTerra ES for any costs reasonably incurred for estimating services,design services,and/or preparation of the proposal requested by the Customer. (b) Chanae Orders Requiring Additional Compensation. If during construction Customer requests changes and/or modifications to the Work identified in the Scope of Work, there are Excusable Delays,and/or there are Material Changed Conditions, as defined in Article 1 above, Customer shall be responsible for payment of the extra costs caused by such modifications and/or changes and OpTerra ES shall be entitled to additional compensation for the following reasons,that include,but are not limited to:(1)Customer requests changes and/or modifications to the Project Scope of Work during the construction phase of the Project; (2)Customer caused delays during OpTerra ES'construction work;(3)discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed prior to the commencement of the Work;(4)discovery of Hazardous Substances at or impacting the Project Location;(5)changes and/or modifications to the Scope of Work required to obtain required permits and approvals as required by any governmental authority having jurisdiction over the project; (6)damage to any equipment or other Work installed by OpTerra ES caused by the act or omission of Customer,its agents or employees;(7)changes and/or modifications to Scope of Work ordered by any governmental authority having jurisdiction over the Project;and(8)any other condition that would not reasonably have been anticipated by OpTerra ES that modifies and/or changes the Scope of Work agreed upon in the Scope of Work that increases the agreed upon Contract Amount identified in the Scope of Work. (c) Change Orders Reouirina Additional Time / Excusable Delays. If during construction Customer requests changes and/or Rev.Date: Page 17 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. modifications to the Work identified in the Scope of Work and/or there are Material Changed Conditions, as defined in Article 1 above, the parties agree that a reasonable extension of Time to the Project Schedule may be necessary to perform such modifications and/or changes. In addition,if OpTerra ES is delayed at any time in the progress of the Work for any reason beyond its control,including,but not limited to,any of the following(each defined as an"Excusable Delay"):(1)by an act or failure to act of, or other delay caused by, Customer or its agents or employees; (2) by failures of any governmental authorities to make timely inspection of the Work or by unanticipated efforts necessary to secure governmental approvals for the Project;(3)by delays resulting from the securing of permits for the Work; (4) delays caused by changes and/or modifications to the Scope of Work as required by any governmental authority having jurisdiction over the project; (5)by labor disputes,fire,vandalism,delay in manufacturing and deliveries; (6)by adverse weather conditions not reasonably anticipated; (7)by unforeseen site conditions,including discovery or existence of Hazardous Substances; (8) by unavoidable casualties or other causes beyond OpTerra ES' control; (9) by delays caused by processing Change Orders requested by or agreed to by Customer or resulting from the implementation of any Change Order;or(10)by delay caused by pending arbitration,then the targeted milestone dates set forth in the Project Schedule shall be reasonably extended by a Change Order executed by both Customer and OpTerra ES. Prior to the extension of such milestone dates, OpTerra ES will use reasonable efforts to make up such delays, including authorizing overtime payments (provided that Customer has issued a Change Order authorizing any such overtime payment and has specifically agreed to pay all costs,including administrative charges and expenses,associated therewith). (d) Material Changed Conditions/Conditions Beyond OpTerra ES'Control. OpTerra ES will provide written notice to Customer of any Material Changed Condition and or any Force Majeure event,as such terms are defined in Article 1 above,within ten(10)business days of OpTerra ES'first discovery of such Material Changed Condition. In the event that OpTerra ES'notice concerns unanticipated subsurface conditions,including soil conditions,or Hazardous Substances,OpTerra ES will not disturb the condition until said notice has been given to Customer and Customer has had a reasonable opportunity to investigate the condition. If there is a disagreement between Customer and OpTerra ES as to whether a Change Order should be issued and executed because of the Material Changed Condition and/or condition beyond OpTerra ES'control,those disputes shall be resolved in accordance with the provisions of Section 16,"Dispute Resolution" of Attachment 2 of the Contract. Pending the resolution of any dispute between OpTerra ES and Customer concerning a Material Changed Condition and/or change beyond OpTerra ES'control,OpTerra ES reserves the right to suspend Work pending the resolution of the dispute. (e) Change Order—Savings Effect. OpTerra ES shall calculate the energy impact of any Customer change orders. As applicable,the energy impact may change the projected savings level and the Guaranteed Energy Savings amount. 5. Minor Changes to Scope of Work. OpTerra ES shall have authority to make minor changes that do not change the total Contract Amount and are consistent with the intent of the final Construction Documents, as amended by Change Order without prior notice to Customer. OpTerra ES will either promptly inform Customer in writing,of any minor changes made during the implementation of the Project,or make available to Customer at the site a set of as-built drawings that will be kept current to show those minor changes. 6. Hazardous Substances. OpTerra ES will promptly provide written notice to Customer if OpTerra ES observes any Hazardous Substance,as defined herein,at or around the Facilities during the course of construction or installation of any equipment which have not been addressed as part of the Scope of Work. OpTerra ES shall have no obligation to investigate the Facilities for the presence of Hazardous Substances prior to commencement of any work unless otherwise specified in the Scope of Work.Customer shall be solely responsible for investigating Hazardous Substances and determining the appropriate removal and remediation measures with respect to the Hazardous Substances. Customer shall be responsible for complying with all Applicable Laws with respect to the identification, removal and proper disposal of any Hazardous Substances known or discovered at or around the Facilities,and in such connection shall execute all generator manifests with respect thereto. OpTerra ES shall comply with all Applicable Laws in connection with the use, handling,and disposal of any Hazardous Substances in the performance if its Work. In connection with the foregoing,Customer shall provide OpTerra ES,within ten(10)business days of the execution of this Contract,a written statement that represents and warrants(i) whether or not,to its knowledge,there are Hazardous Substances either on or within the walls,ceiling or other structural components, or otherwise located in the Work area, including, but not limited to,asbestos-containing materials; (ii)whether or not,to its knowledge, no conditions or situations exist at the Facilities which are subject to special precautions or equipment required by federal,state,or local health or safety regulations;and(iii)whether or not,to its knowledge,there are no unsafe working conditions at the Facilities. 7. Pre-Existing Conditions. Certain pre-existing conditions may be present within the Customer's facilities that(i)are non-compliant with applicable codes, (ii)may become non-compliant with applicable codes upon completion of OpTerra ES'Work,(iii)may cause OpTerra ES'completed Work to be non-compliant with applicable codes, (iv)may prevent the Customer from realizing the full benefits of OpTerra ES'Work, (v)may present a safety or equipment hazard,or(vi)are otherwise outside the scope of OpTerra ES'Work. Regardless of whether or not such conditions may have been readily identifiable prior to the commencement of Work, OpTerra ES shall not be responsible for repairing such pre-existing conditions unless such is expressly provided for in the Scope of Work or an approved change thereto. OpTerra ES,in its sole discretion,may determine whether it will bring said pre-existing conditions into compliance by agreeing to execute a change order with the Customer for additional compensation and, if appropriate, an extension of time. Examples of pre- existing conditions include,but are not limited to,the following: • With respect to lighting equipment maintenance and/or lamp and ballast retrofit work,the Customer shall be responsible for properly grounding lighting fixtures before OpTerra ES commences work in compliance with applicable codes. • With respect to installation of new lighting fixture installations,prior to commencement of the lighting fixture installation,the Customer shall be responsible for providing an existing or new grounding conductor or solidly grounded raceway with listed fittings at the lighting fixture junction box that is properly connected to the facility grounding electrode system in compliance with the latest National Electrical Code("NEC"). OpTerra ES'Scope of Work shall include properly terminating the lighting fixtures to the existing grounding conductor or to the existing solidly grounded raceway with listed fittings at the lighting fixture junction box. • Where OpTerra ES' Scope of Work includes pulling new wiring for lighting fixtures from an existing lighting panel, a grounding conductor shall be included in the lighting circuits. The Customer is responsible for providing an existing or new grounding conductor Rev.Date: Page 18 of 30 ESC—General Version 1 September 2014 OpTerra Energy Services, Inc. terminal bar at the lighting panel that is properly connected to the facility grounding electrode system in compliance with the latest NEC. • With respect to OpTerra ES projects with new equipment connecting to the facility's existing electrical distribution system,OpTerra ES shall not be responsible for the electrical integrity of the existing electrical system,e.g.,the condition and proper termination of current-carrying,grounded,and grounding conductors,bus taps,protective elements,the proper protection of existing wire through knockouts, or missing components. The Customer is responsible for providing and maintaining the facility's electrical distribution system that meets the latest NEC and Guidelines. ARTICLE 5. PROJECT COMPLETION. 1. Substantial Completion/Reduction of Retention: At the time the Work is Substantially Complete in conformance with the Scope of Work and Construction Documents,OpTerra ES will supply to Customer a written Certificate of Substantial Completion.Customer shall within ten(10)business days of receipt of the Certificate of Substantial Completion,review the Work for the sole purpose of determining that it is substantially complete and in substantial conformance with the Scope of Work,final Construction Documents and any Change Orders,generate a punch list of items remaing to be completed and sign and return the Certificate of Substantial Completion to OpTerra ES acknowledging and agreeing: (1)that the Work is substantially complete in accordance with the Contract Documents so Customer can occupy or utilize the Work for its intended use; (2)the date of such Substantial Completion; (3)that from the date of Substantial Completion Customer will assume responsibility for the security of,insurance coverage for,maintenance, utilities for and damage to or destruction of the Work.Customer agrees that approval of the Certificate of Substantial Completion shall not be unreasonably withheld. Title to all or a portion of the Project equipment,supplies and other components of the Work will pass to Customer upon the earlier of(i) the date payment for such Project equipment, supplies or components is made by Customer or (ii) the date any such items are incorporated into the Project.OpTerra ES will retain care,custody and control and risk of loss of such Project equipment,supplies and components until the earlier of Beneficial Use or Substantial Completion. At such time, the retention withheld by Customer shall be reduced to five(5%)percent. 2. Final Completion: When OpTerra ES considers the Work,including any punch list items,to be fully complete in accordance with the Scope of Work,OpTerra ES will notify the Customer that the Work is fully complete and ready for final inspection. The Customer shall inspect the Work to verify the status of Final Completion within ten (10)business days after its receipt of OpTerra ES'certification that the Work is Complete. If Customer does not verify the Final Completion of the Work with this period,the Work shall be deemed fully completed. If Customer determines that any Work is incomplete and/or defective, the Customer shall promptly notify OpTerra ES in writing of such incomplete and/or defective work,itemizing and describing such remaining items with reasonable particularity. OpTerra ES will,in a reasonable amount of time,complete any incomplete items or remedy defective items after which OpTerra ES shall provide written notice to the Customer that the Work is fully complete.Customer shall re-inspect all work completed or remedied by OpTerra ES within ten(10)business days of OpTerra ES'notice of completion from OpTerra ES that the Work is complete.If the Customer does not re-inspect the Work within the ten(10)business day period,the Work shall be deemed fully complete. When the Customer agrees that the Work is fully completed in accordance with the Scope of Work and Contract Documents, Customer shall give OpTerra ES written notice of acceptance of the Work and Final Completion and will issue a Final Completion Certificate to OpTerra ES. At that time,Customer shall pay OpTerra ES any remaining Contract Amount due and any outstanding retainage being withheld by the Customer. Rev.Date: Page 19 of 30 ESC—General Version 1: September 2014 OpTerra Energy Services, Inc. ATTACHMENT 3B CUSTOMER'S FACILITIES & EXISTING EQUIPMENT The following Customer Facilities and/or Existing Equipment(streetlights to be replaced)are included under the Scope of Work as listed below: Fixture Fixture Wattage Type Count Comments 70W LED 65 Fixtures will be replaced and returned to City. sow LED 1 Fixtures will be replaced and returned to City. 100W HPS 826 14OW LED 17 Fixtures will be replaced and returned to City. 150W HPS/MH 985 175W MH 25 175W My 1,369 20OW HPS 187 215W LED 1 Fixtures will be replaced and returned to City. 16OW LED 8 Fixtures will be replaced and returned to City. Stop Six Neighborhood (29) ICity currently has plans to replace these fixtures. Total 3,455 The Existing Equipment is that which is listed in OpTerra ES'energy assessment known as the Program Development Report dated: April,2017. Rev. Date:_...... _____ Page 20 of 30 ESC—General Version 1 September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3C SCOPE OF WORK Energy Conservation Measures t0 Be Implemented iptia n _ SL1 LED Streetli hi m• or rro eot 101 The scope of work includes replacing existing HID cobra head and barnyard style streetlights with energy efficient LED fixtures mounted on the existing poles and arms. Existing LED fixtures over 50 watts,except for fifty 70 watt LED fixtures in the Hillside neighborhood,will also be replaced in order to provide uniformity and to maximize energy cost avoidance. The electric Transmission and Distribution Service Provider(TDSP),Oncor Electric Delivery Company("Oncor"),currently offers a Street Lighting Service tariff(6.1.1.1.8)that includes LEDs with energy consumption at or below 100 watts. The rate for LED fixtures is equal to that for 100-watt high pressure sodium(HPS)fixtures,thus while replacement of existing 100 watt HPS fixtures will provide uniformity as well as operat4onal and maintenance cost avoidance,it will not provide energy cost avoidance. A new tariff that will address these fixtures is currently under review;however,the effective date for the new tariff is unknown at this time. Under these circumstances,OpTerra ES proposes to replace existing LED fixtures over 50 watts,except for fifty 70 watt LED fixtures in the Hillside neighborhood;100 watt,150 watt,175 watt and 200 watt HID cobra head style fixtures;and 175 watt barnyard style fixtures with a 48-watt LED cobra head fixture,specifically the American Electric Lighting Autobahn Series model ATBO 20BLEDE70 MVOLT R2 3K MP NL P7,as specified by the Customer. These fixtures are generally located along neighborhood streets. Replacement will not only create cost avoidance for the Customer,but will also allow standardization to a single fixture along these streets,improving efficiencies and minimizing the number of fixture types kept in inventory. The replacement consists of removing the existing fixture and mounting the new LED fixture head on the existing pole. The existing wiring from the electrical service to the head is assumed to be in good condition and will be re-used for the new LED fixture. Any deficiencies found during fixture replacement will be noted and reported to the Customer or repaired,as noted later in this section. OpTerra ES will provide a wattage label on the bottom side of the fixture indicating the LED fixture wattage. During construction,data will be collected at each pole to update the Customer's existing inventory. Data collected will include GPS coordinates of the light pole,pole type,new fixture manufacturer,fixture model number,and fixture type,number of lamps per pole,lamp wattage,and voltage. During construction,this information will be provided to the Customer on a weekly basis. OpTerra ES will assist the Customer with providing this information to Oncor in order to update their billing data. The cost for the Pilot Project is based on the fixture counts determined during the streetlight survey,which are presented in the table below. No decorative fixtures are included in the replacement count. LED fixtures over 50 watts will be replaced and returned to the Customer for possible future use. An additive or deductive change order will be executed with the Customer to account for discrepancies between the replacement count below and the final replacement count. The exact location of the streetlights to be replaced can be found in Appendix A,Streetlight Inventory Database. Fixture Fixture Wattage Type Count Comments 70W LED 65 Fixtures wiVbr;t- ,i._Ik' �'turneJt� Citta. 80W LED 1 Fixtures will be rep accd.awd recurved tc Cirq 100W HPS 826 140W LED 17 Fixtures will be replaced and returned to City. 150W HPS/MH 485 175W MH 25 175W MV 1,369 200W HPS 187 215W LED 1 Fixtures will be replaced and returned to City. 160W I LED 8 Fixtures will be replaced and returned to City. Stop Six Neighborhood (29) City currently has plans to replace these fixtures. Total 3,455 Operation of existing fixtures is controlled via on-board photocells. A photocell may control either a single fixture or multiple fixtures through a relay. If an existing HID fixture houses a photocell,the LED replacement fixture will include a new Acuity DLL Elite photocell. If the existing HID fixture does not house a photocell,a shorting cap will be installed in the photocell receptacle of the LED replacement fixture. New fixtures will utilize a 7-pin connection to accommodate the potential for installation of future control technologies. During the course of construction,it is anticipated there will be instances where items outside the scope of work will need to be repaired. The Customer has identified a separate contingency fund in order to facilitate these needed repairs. OpTerra ES will be in a position to make needed repairs as we identify them during changeout of the fixtures. The table below identifies the costs for certain types of repairs. An approval method Rev.Date: Page 21 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. would be developed with the Customer to authorize these repairs before any additional costs were charged to the Customer. Customer provided fuses and/or fuse holders can be installed for each new fixture at no additional cost. Repair cost Replace existing mast arm with new arm. Replace wiring from existing pole to new fixture. Mast arm and wiring provided by City. $ 40.98 Replace existing overhead wiring from pole to pole. Wiring provided by City. $115.53 Replace existing wiring in existing pole from power source to new fixture. Wiring provided by City. $ 23.37 Provide tree trimming in orderto access fixture and pole(cost per pole). $ 35.06 Provide new underground conduit and wiring(cost perfoot). $ 5.98 Rev. Date: Page 22 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3D PROJECT SCHEDULE OpTerra ES to present detailed project schedule to Customer: 10 days after NTP Final Completion: 4 months after NTP Rev.Date: Page 23 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3E PROGRESS PAYMENT SCHEDULE Program Development Agreement Fee $35,000 Mobilization Fee $194,805 Remaining Implementation Cost $1,068,895 Contract Amount $1,298,700 The fee for the Program Development Agreement Report plus a mobilization fee will be invoiced to the Customer upon both Parties signing the Energy Services Contract and due and payable as detailed in Contract Attachment 2,Section 4. Annual Guarantee Fee First Year Guarantee Fee $0 Rev. Date: _ Page 24 of 30 ESC—General Version 1. September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3F ENERGY MANAGEMENT AND GUARANTEE SERVICES 1. Standard Energy Management Descriptions&Definitions 1. M&V Commencement Date: `"M&V Commencement Date"shall be the first day of the month following both:1)The signed Certificate of Final Completion,and 2)OpTerra ES'receipt of the Contract Amount. 2. Construction Period: The"Construction Period"is the period beginning with the first day of the month that equipment is first installed and continuing until the M&V Commencement Date. 3. Measurement Year: A"Measurement Year"is each one-year period following the M&V Commencement Date, plus the Construction Period(Measurement Year 0)which may not necessarily be a one-year period. 4. EC Savings: The energy conservation savings,or"EC Savings", having units of dollars($) are those savings achieved through the reduction in energy consumption, demand, energy rates, maintenance, or materials through the implementation of the Scope of Work. 5. Energy Savings Term: The "Energy Savings Term" shall be the Construction Period followed by the number of Measurement Years shown in Attachment 31.or until the termination of this Contract. 6. Savings Measurement&Verification Plan: The"Savings Measurement&Verification Plan"is the scope of work defined by Attachment 3H and provides for the quantification of EC Savings for the purpose of meeting the Guaranteed Savings. 7. Projected Energy Savings: "Projected Energy Savings"are those savings expected from the installation and continued operation of the Scope of Work. 8. Termination of Guaranteed Savings: If the Contract is terminated pursuant to Section 19 of Attachment 2, the Guaranteed Savings shall also be terminated. Should such termination occur on a date other than at the beginning of a Measurement Year OpTerra ES shall have no Guaranteed Savings for a partial year. 9. Energy Unit Savings: The savings in units of energy, power, water etc., achieved through the reduction in energy consumption,demand,through the implementation of the Scope of Work as defined and calculated in herein. 10. Baselines: In determining Baselines, OpTerra ES identified some of the factors which may affect energy use for the Facilities, including but not limited to: hours and levels of occupancy; adjustments in labor force; building use and operational procedures;temperature, humidification,and ventilation levels; installed lighting and scheduled use; building construction and size; general level of repair and efficiency of heating and air conditioning equipment and other energy- using equipment;and amount of heating and air conditioning and other energy-using equipment. After consideration of those factors and certain other anomalous use of the Facilities,OpTerra ES establishes initial Baselines. It is understood that due to changes in factors affecting energy use, the Baselines may be revised from time to time as detailed in this Attachment. In addition, data collected during the period before construction may indicate a change of the energy use pattern at the facility and require a change to the Baselines. OpTerra ES shall notify the Customer,in writing,of all such changes. 11. Base Energy Rates: The"Base Energy Rates" having units of dollars per energy unit,are presented herein and shall be used by OpTerra ES to calculate the EC Savings. H. Guaranteed Savings Terms and Conditions 1. The Customer shall maintain all Scope of Work installed under this Contract in a manner consistent with the manufacturer's or OpTerra ES'recommended maintenance schedules and procedures from the time of Substantial Completion. OpTerra ES shall,if it deems necessary,inspect the Facilities annually. 2. For the purpose of determining EC Savings, OpTerra ES shall prepare reports, take on-site measurements, monitor building automation systems,and/or additional work as required by and detailed in the Savings Measurement&Verification Plan. 3. The Customer acknowledges and consents to OpTerra ES' right to monitor EC Savings and energy management performance by conducting on-site measurements,including,but not limited to,reading meters and installing and observing on-site monitoring equipment. The Customer shall cooperate fully with any such measures instituted by OpTerra ES pursuant to this Subsection. OpTerra ES shall not institute any measures that unreasonably interfere with the business of Customer conducted at the Facilities.At OpTerra ES'request,to facilitate OpTerra ES'monitoring of the Scope of Work, Customer shall open up a communication path via the Internet,between Customer's Energy Management System(s)and OpTerra ES' office in Overland Park, KS. Customer shall provide at its expense any networking, telecommunication, encryption,or security hardware and/or software necessary to achieve such communication path, as well as any similar hardware,software,or encryption devices necessary for use at OpTerra ES'office. OpTerra ES will provide the customer with the precise locations for network communication ports within Customer's facilities. Customer agrees not to charge OpTerra ES to install or maintain such communication paths for the duration of this agreement. 4. For the purpose of determining EC Savings,Customer shall cooperate with OpTerra ES by providing utility information, changes in factors affecting energy use,and/or additional information as requested by OpTerra ES personnel. 5. Savings Guarantee: Subject to changes in factors affecting energy use,OpTerra ES guarantees that the Customer will realize total EC Savings during the Energy Savings Term of not less than the Guaranteed Savings. a. Guarantee Payment: Should the Customer's total EC Savings during any Measurement Year be less than the Guaranteed Savings for that year, OpTerra ES guarantees that it shall pay to the Customer, within 30 days of the acceptance of the annual energy savings report,the difference between the Guaranteed Savings for such year and the total EC Savings for that Measurement Year not to exceed the guarantee amount. If in the judgment of the Customer Customer would benefit from additional energy services or energy saving retrofits,Customer and OpTerra ES may mutually agree upon such services or retrofits in lieu of Guarantee Payment. For the purposes of this Contract,such services or retrofits actually delivered by OpTerra ES will be considered a Guarantee Payment for that Measurement Year. Rev.Date: Page 25 of 30 ESC—General Version 1 September.2014 OpTerra Energy Services, Inc. b. Excess Savings: For each Measurement Year in which the EC Savings exceed the Guaranteed Savings,the Excess Savings shall be the difference. For any Measurement Year following a Measurement Year(s)in which OpTerra ES has made a Guarantee Payment to the Customer, the Customer shall first pay to OpTerra ES,to the extent of the Excess Savings,the amounts paid by OpTerra ES to the Customer for all prior Measurement Years. c. Accumulated Savings: The total Excess Savings remaining,including construction period if savings are positive,after payment to OpTerra ES for previous Guarantee Payment(s), will be added to the EC Savings for the following Measurement Year, With respect to any Measurement Year in which OpTerra ES has made a Guarantee Payment to the Customer the Accumulated Savings will be set to zero for the following Measurement Year Wherever such term is used elsewhere in this Contract,the Accumulated Savings will be considered EC Savings. 6. Changes in Factors Affecting Energy Use a. The Customer shall notify OpTerra ES in writing within ten(10)business days of any change in any factor that affects the Baselines as set forth. OpTerra ES will determine the effect that any such change will have on EC Savings and present to the client a written analysis of the effects of the changes. Changes that are long term or permanent will be reflected in a change to the Baseline. Temporary changes that affect energy use will be calculated and added to the corresponding month's EC savings. b. If a change in any of the factors involved in the Baseline occurs and results in a reduction of EC Savings,then the level of dollar energy savings to be guaranteed by OpTerra ES will be decreased by the same amount. c. Customer and OpTerra ES may from time to time desire to make changes for the express purpose of increasing EC Savings. It is agreed that these changes will only be made with the written consent of both parties,which will not be unreasonably withheld. The Baseline will not be adjusted to reflect any changes agreed to under this subparagraph. If OpTerra ES elects to pay for the cost of any such changes that would not unreasonably interfere with the conduct of Customer's business, and the Customer does not consent to the changes, then the Baseline will be adjusted upward by the amount of savings projected from the changes. d. During the Energy Savings Term when the effect on savings can not be accurately determined due to construction or major changes, Projected Energy Savings for the facility will be used for the period of such changes and until the effect of the changes can be determined by OpTerra ES. e. OpTerra ES has the right to charge the Customer for work required to assess the effect on savings for any large scale changes,including, but not limited to,building additions,new buildings,and new or changed HVAC equipment,that require more than forty(40)hours per year to be spent in calculating their effect on the energy savings. Such hours will be billed at current OpTerra ES engineering rates. Before initiating such work,OpTerra ES will notify the Customer in writing of the intent and cost associated with the work. The Customer will,within 45 days in writing,notify OpTerra ES with permission to proceed or,alternatively at no charge,to stipulate that the Projected Energy Savings for the existing facility in question be used as Energy Use Savings for the purpose of meeting the guarantee. If OpTerra ES does not receive written notice within 45 days,the Projected Energy Savings for the existing facility in question will be used as EC Savings until such time that the Customer approves the work,as long as the scope of the work has not changed. f. If the Customer fails to notify OpTerra ES of changes in factors affecting energy use or fails to supply OpTerra ES with requested information that is required for the calculation of saving in a timely manner EC Savings for the period will be equal to those Projected Energy Savings for the period. If information for the period in question is supplied at a later date,the EC Savings will be modified only if the calculated savings for the period exceed the Projected Energy Savings for that period of time. g. Any changes made by OpTerra ES to the Baselines or savings calculations, as outlined in this contract, shall be presented to the Customer for approval. The Customer shall have 30 days to approve or question the changes in writing. If OpTerra ES does not receive notice in writing within 30 days,the changes will be considered contractually valid and implemented as proposed. If the Customer notifies OpTerra ES within 30 days of their non-approval of the changes,OpTerra ES will work with the client to answer any questions or make any necessary corrections. h. The Customer agrees that OpTerra ES shall have the right, with or without prior notice, to inspect the facilities to determine if the Customer is complying and shall have complied with its obligations as set forth above. In the event that any inspection discloses that the Customer has failed on the date of the inspection to be in compliance with any items set forth above,then the Guaranteed Energy Savings shall be assumed to have been achieved for and with respect to the portion of the Energy Savings Period during which such failure shall have existed. lll. Calculation of EC Savings 1. Energy Savings Report: Annually within 90 days after receipt of all needed information for each Measurement Year during the Energy Savings Term,OpTerra ES shall submit an annual energy savings report with a precise calculation of the EC Savings to the Customer, unless additional information is needed to accurately calculate the EC Savings, in which case the Customer shall be notified of such a situation within the 90 day period. 2. Four different types of EC Savings are identified under this Contract:(a)Energy Use Savings,(b)Fuel Switch Savings,(c) Energy Rate Reduction Savings,and(d)Stipulated Non-Energy Savings. Total EC Savings will be determined by adding together the Energy Use Savings,Fuel Switch Savings,Energy Rate Reduction Savings,Operational Reduction Savings, and any calculation of an adjustment to the savings due to changes in factors affecting energy use for each period. a. Energy Use Savings are those savings achieved through reductions in energy use,energy demand,water and other commodities. OpTerra ES will calculate the Energy Unit Savings as detailed in the Savings Measurement and Verification Plan. The Energy Unit Savings will then be multiplied by the applicable Base Energy Rates set forth herein. The dollar amount determined by such calculation shall be the Energy Use Savings for such period. b. Fuel Switch Savings are those savings achieved by switching to a more economical source of energy on a cost per unit of energy basis. The Fuel Switch Rate(dollars saved per unit of new fuel used)will be calculated by OpTerra ES and presented herein and shall not be escalated for purposes of calculating savings. Fuel Switch Savings shall be computed for each period by multiplying the Fuel Switch Rate by the number of units of new fuel consumed for Rev. Date: Page 26 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. that period. c. Energy Rate Reduction(ERR)Savings are those savings achieved through either improving the rate from local utility company,direct purchase of a commodity,or bulk purchase of commodity. An ERR savings rate(dollars saved per unit of applicable energy) will be calculated by OpTerra ES and presented herein and shall not be escalated for purposes of calculating savings. ERR Savings shall be computed for each period by multiplying the ERR savings rate by the number of units of energy consumed for that period. There will be no Energy Rate Reduction Savings calculation or penalty if the current energy rate exceeds the Base Energy Rate. There will be no ERR Savings calculation unless an energy rate reduction has been achieved either directly or indirectly by OpTerra ES. d. Stipulated Non-energy Savings are achieved through reduction in non-energy cost due to the implementation of the Scope of Work identified by OpTerra ES,to be calculated as set forth herein. IV. Savings Measurement& Verification Plan The following details the methodologies and calculations to be used in determining the Energy Unit Savings under this Contract. Facility or ECM Measurement&Verification Method Options Electric Usage SL1 LED Streetlight Pilot Project M&V Option A 1. M&V Option A: This option allows for the energy savings to be predicted, quantities verified, rates verified and calculations agreed upon between the Customer and OpTerra ES. One time bill verification and stipulated parameters are used to quantify savings that are stipulated for the term of the Contract. a. OpTerra ES will supply a one-time report to the Customer detailing the verification of quantities and calculation of savings. If the calculated savings fall short of those expected,OpTerra ES will have the opportunity to remedy the shortfall and re-measure and calculate the results. Such work will be done at OpTerra ES'expense and shall not be unreasonably denied by the Customer, as long as such work does not interfere with the Customer's use of the Facilities. These calculated savings will be defined as Energy Unit Savings and will be agreed to occur each year of the Contract. During the Construction Period, the Energy Unit Savings will be calculated by adding the savings measured for the whole months between Substantial Completion or Beneficial Use of the EC Measure and the M&V Commencement Date. b. The Energy Unit Savings generated from the installation of the Lighting ECM's shall be measured and verified using Option A of the International Performance Measurement and Verification Protocol. These savings shall be measured and calculated by the following method: 1. SL1 -LED Streetlight Pilot Project-Replace existing cobrahead and barnyard fixtures with new LED fixtures. Streetlight retrofits will include a new photocell and wattage label.A comprehensive as-built template provided to Oncor will be used to log the new LED wattage replacement.This will allow Oncor to change each fixture with a Lower Monthly Energy Charge. a. Scope is applicable for 3,455 residential fixtures. b. Annual Projected Savings by Fixture Type Rev. Date: Page 27 of 30 ESC—General Version 1: September,2014 OpTerra Energy Services, Inc. Table F-1 Old New Old New Existing New TDSP TDSP TDSP TDSP Old New Fixture Fixture kWh/mo/jkWh/mo/ Tariff Tariff kWh/mo kWh/mo Type Type Quantity fixture fixture $/fixture S/fixture nth nth 100 HPS 100 LED 826 40 40 0.92 0.92 33,040 33,040 175 MV 100 LED 2669 70 40 1.53 0.92 186,830 106,760 200 HIPS 100 LED 187 80 40 1.73 0.921 14,9601 7,480 175 MH 100 LED 25 65 40 1.43 0.921 1,6251 1,000 Old New f Existing New TDSP TDSP I Old REP New REP Fixture Fixture monthly monthly -nnnthly mnnthly Annual Type Type Quantity charges charges charges charges Savings 100 HPS 100 LED 826 SS'5 581 8 5.778 $C 175 MV 100 LED 2669 S,1-1397 S2 62 0551 $5,746 $72.864 200 HPS 100 LED 187 53419 S18� = f-%5 $403 $6.799 175 MH 100 LED 25 S381 S25 587 $54 $569 $5.600 S3,660 542,726 $7,980 $80,232 $76,219 Guaranteed Savings TDSP Consumption charges: 0.00168 per kWh REP Consumption charges: 0.05382 per kWh TDSP Monthly Charges=(Quantity x Tariff$/fixture)+(Quantity x kWh/mo/fixture)x TDSP Consumption Charges$/kWh REP Monthly Charges-(Quantity x kWh/mo/fixture)x REP Consumption Charges$/kWh Annual Savings=(Old TDSP/REP Monthly Charges-New TDSP/REP Monthly Charges)x 12 months/year c. The lower monthly energy charges shown in Table F-1 are considered the Base Energy Rates and are to be increased each Measurement Period on a cumulative basis by three percent(3'/0) beginning on the first anniversary of the M&V Commencement Date and continuing on the first day of each Measurement Period thereafter. Vt. Stipulated Non-Energy$Savings The following dollar savings have been calculated by OpTerra ES from the installation of the EC measures and have been agreed to by the Customer and will not be measured. The sum of these savings each measurement year will be added to the EC savings for that Measurement Year. Measurement Year Operational and Maintenance Savings 1 519,343 2 $19.923 3 $20.521 4 $21;137 5 $21.771 6 $22,424 7 $23,097 8 $23,789 9 $24,50 10 $25,238 11 12 S26, _— 13 $27,578 14 $28,406 15 $29,258 Rev.Date: Page 28 of 30 ESC–General Version 1: September,2014 OpTerra Energy Services, Inc. ATTACHMENT 3G GUARANTEED SAVINGS Year Guaranteed Savings 1 $95,562 2 $98,429 3 $101,382 4 $104,424 5 $107,557 6 $110,784 7 $114,108 8 $117,530 9 $121,056 10 $124,688 11 $128,429 12 $132,282 13 $136,250 14 $140,338 15 $144,548 Rev.Date:,-,,-,, Page 29 of 30 ESC—General Version 1: September 2014 OpTerra Energy Services, Inc. ATTACHMENT 3H FINANCIAL PROFORMA Financial Aspects of Performance Based Energy Program for City of Fort Worth Fort Worth, TX Implementation $1,263,700 Development $35,000 Total Project Investment $1,298,700 2 3 4 5 6 Total Operational and (Guaranteed) Maintenance Program Payment to Year Energy Savings Savings Savings Lessor Net Savings 1 x^ .219 $19,343 $95,562S953.6: 50 $31,912 2 $78,506 $19,923 $98,429 $66,517 $31,912 3 $80,861 $20,521 $101,382 $69,470 $31,912 4 $83,287 $21,137 $104,424 $72,512 $31,912 5 $85,786 $21,771 $107,557 $75,645 $31,912 6 $88,360 $22,424 $110,784 $78,872 $31,912 7 $91,011 $23,097 $114,108 $82,196 $31,912 8 $93,741 $23,789 $117,530 $85,618 $31,912 9 $96,553 $24,503 $121,056 $89,144 $31,912 10 $99,450 $25,238 $124,688 $92,776 $31,912 11 $102,434 $25,995 $128,429 $96,517 $31,912 12 $105,507 $26,775 $132,282 $100,370 $31,912 13 $108,672 $27,578 $136,250 $104,338 $31,912 14 $111,932 $28,406 $140,338 $108,426 $31,912 15 $115,290 1 $29,258 1 $144,548 $112,636 $31,912 Totals1 $1,417,609 $359,758 $1,777,367 $1,298,687 $478,680 Notes By Column: (1) Years after implementing retrofit changes (2) Energy Savings is escalated by 3%to account for inflation. (3) Operational and Maintenance Savings is stipulated. (4) Total Program Savings is the sum of Columns(2)and(3) (5) Project is not financed. Amortized project cost used to demonstrate net energy savings. (6) Net Savings equals Total Program Savings less Payment to Lessor, columns (4)-(5). Rev. Date: Page 30 of 30 ESC-General Version 1: September,2014 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FoRTWoRTH COUNCIL ACTION: Approved on 8/29/2017 DATE: 8/29/2017 REFERENCE P-12092 LOG NAME: 13P20STREET LIGHT NO.: ENERGY SERVICES CODE: P TYPE: NOW PUBLIC CONSENT HEARING: NO SUBJECT: Authorize Execution of an Energy Savings Performance Contract with OpTerra Energy Services, Inc., Using a Cooperative Contract for the Implementation of a Street Light Energy Savings Pilot Program in Southeast Fort Worth in an Amount Up to$1,298,700.00 for the Transportation and Public Works Department(COUNCIL DISTRICTS 5 and 8) RECOMMENDATION: It is recommended that the City Council authorize the execution of an Energy Savings Performance Contract with OpTerra Energy Services, Inc., for the implementation of a Street Light Energy Savings Pilot Program in Southeast Fort Worth using The Interlocal Purchasing System (TIPS) cooperative contract No. 170103 for an amount up to$1,298,700.00 for the Transportation and Public Works Department. DISCUSSION: On April 19, 2017, Informal Report No. 9876 updated Council on the Street Light Energy Savings Pilot Program. At that time the City was coordinating with the U.S. Department of Energy(DOE)and the State Energy Conservation Office(SECO)to develop the project and to prepare a citywide preliminary energy assessment. Council was also informed that future action would be requested to authorize an agreement with OpTerra Energy Service, Inc., (OpTerra), to manage a pilot project in Southeast Fort Worth. The Transportation and Public Works Department(TPW)will engage OpTerra throughThe Interlocal Purchasing System (TIPS) Board of Directors of Region 8 Education Service Center's contract, TIPS contract number 17103, to replace City-owned residential street lights in southeast Fort Worth in the area bounded by IH-35W, IH-30, South East Loop 820 and IH-20. All replacements will meet the City of Fort Worth Lighting Policy requirements. The program is expected to replace 3455 City-owned residential street light fixtures. TPW intends to engage a third-party engineer to evaluate the energy and cost savings of this pilot project approximately one year after final installation. COOPERATIVE PURCHASE—State law provides that a local government purchasing an item or service under a Cooperative Purchasing Agreement satisfies any state law requiring that the local government seek competitive bids for purchase of the item or service. TIPS contracts were competitively procured to increase and simplify the purchasing power of government entities. M/WBE OFFICE—A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the purchase of goods or services from the source(s)where subcontracting or supplier opportunities are negligible AGREEMENT TERMS- Upon City Council's authorization, this Contract shall commence on the day the contract is fully executed and shall remain in effect through August 31, 2018. FISCAL INFORMATION/CERTIFICATION: http://apps.cfwnet.org/council_packet/mc review.asp?ID=25024&councildate=8/29/2017 11/17/2017 M&C Review Page 2 of 2 The Director of Finance certifies that funds are available in the General Capital Project Fund. Prior to an expenditure being incurred, the participating department has responsibility to validate the availability of funds. BQN\\ TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Charttield 2 FROM Fund ; Department Account Project Program Activity Budget Reference# Amount ID I I Year (Chartfield 2) Submitted for City Manager's Office by: Jay Chapa(5804) Originating Department Head: Douglas Wiersig (7801) Darla Miller-Powell (2058) Additional Information Contact: Samuel Werschky (7861) ATTACHMENTS rurrrr iczi5 Op Terra.pdf http://apps.cfwnet.org/council_packet/mc review.asp?ID=25024&councildate=8/29/2017 11/17/2017 CERTIFICATE OF INTERESTED PARTIES FORM 1295 lofl Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-246940 A ,2 3 4 OpTerra Energy Services, Inc. Q!h Overland Park,KS United States Date Filed: d� 2 Name of governmental entity or state agency that is a party to the contract for which the form is 08/08/2017 being filed. City of Fort Worth Date Ackno god: + ' , wo (1' 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, , rovi S � 1] description of the services,goods,or other property to be provided under the contract. G 20STREET LIGHT ENERGY SERVICES Street Light Energy Services Pilot Project ' 1r 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary OpTerra Energy Group,Inc. Englewood,CO United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAV!T I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. �,DO'PUA91 SUSAN M.TEEGARDEN My Appt.Exp Signature of autfiorizad agent of contracting busIness entity AFFIX NOTARY STAMP/SEAL ABOVE Sworn to and subscribed before me,by the said J © I 1 rl s G 17 _ this the J�day of.� . 20 l L,to certity which,witness my hand and seal of office. Alk of JJ T / Signature otoffi�eradminisfering oath Printed name of officer adminfstering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883